Lang v. Commissioner of Social Security Administration

• Court: District Court, D. Arizona
• Decided: March 7, 2023
• Docket: 2:21-cv-01955
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Shamika Lang, No. CV-21-01955-PHX-DWL

10 Plaintiff, ORDER

11 v.

12 Commissioner of Social Security Administration, 13 Defendant. 14 15 This is a Social Security appeal. On March 1, 2022, the Court referred the matter 16 to Magistrate Judge Metcalf for the preparation of a report and recommendation (“R&R”) 17 as to the final disposition. (Doc. 16.) On January 30, 2023, Judge Metcalf issued a detailed 18 32-page R&R concluding that the ALJ’s decision should be affirmed. (Doc. 27.) 19 Afterward, Plaintiff filed objections to the R&R and the Commissioner filed a response. 20 (Docs. 28, 29.) For the following reasons, Plaintiff’s objections are overruled, the R&R is 21 adopted, and the ALJ’s decision is affirmed. 22 DISCUSSION 23 I. Legal Standard 24 Under 28 U.S.C. § 636(b)(1)(B), a district judge may “designate a magistrate judge 25 to . . . submit to a judge of the court proposed findings of fact and recommendations for 26 the disposition” of a dispositive matter. Id. 27 “Within fourteen days after being served with a copy [of the R&R], any party may 28 serve and file written objections . . . as provided by rules of court. A judge of the court 1 shall make a de novo determination of those portions of the report or specified proposed 2 findings or recommendations to which objection is made. A judge of the court may accept, 3 reject, or modify, in whole or in part, the findings or recommendations made by the 4 magistrate judge. The judge may also receive further evidence or recommit the matter to 5 the magistrate judge with instructions.” Id. § 636(b)(1). See also Fed. R. Civ. P. 72(b)(2)- 6 (3) (same). 7 District courts are not required to review any portion of an R&R to which no specific 8 objection has been made. See, e.g., Thomas v. Arn, 474 U.S. 140, 149-50 (1985) (“It does 9 not appear that Congress intended to require district court review of a magistrate’s factual 10 or legal conclusions, under a de novo or any other standard, when neither party objects to 11 those findings.”); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) 12 (“[T]he district judge must review the magistrate judge’s findings and recommendations 13 de novo if objection is made, but not otherwise.”). Thus, district judges need not review 14 an objection to an R&R that is general and non-specific. See, e.g., Warling v. Ryan, 2013 15 WL 5276367, *2 (D. Ariz. 2013) (“Because de novo review of an entire R & R would 16 defeat the efficiencies intended by Congress, a general objection ‘has the same effect as 17 would a failure to object.’”) (citations omitted); Haley v. Stewart, 2006 WL 1980649, *2 18 (D. Ariz. 2006) (“[G]eneral objections to an R & R are tantamount to no objection at all.”). 19 II. Analysis 20 A. Symptom Testimony 21 The first assignment of error in Plaintiff’s opening brief is that the ALJ erred when 22 discrediting her symptom testimony. (Doc. 21 at 1, 11-22.) 23 The R&R recommends that this challenge be rejected. (Doc. 27 at 4-27.) Although 24 the R&R acknowledges that several of the ALJ’s proffered reasons for discrediting 25 Plaintiff’s symptom testimony were flawed, it concludes that any error was harmless 26 because “the remaining reasons offered by the ALJ (e.g. imaging showing limited 27 impairment, limited treatment, failure to report self-treatment, etc.) were clear and 28 convincing reasons for rejecting her testimony on these impairments, and were supported 1 by substantial evidence.” (Id. at 27.) 2 As an initial matter, the Court agrees with the R&R’s statement that if some of the 3 ALJ’s proffered reasons for rejecting Plaintiff’s symptom testimony were valid under 4 Ninth Circuit law and supported by substantial evidence, any error in the ALJ’s other 5 reasons for rejecting Plaintiff’s symptom testimony was harmless. See, e.g., Molina v. 6 Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) (“[S]everal of our cases have held that an 7 ALJ’s error was harmless where the ALJ provided one or more invalid reasons for 8 disbelieving a claimant’s testimony, but also provided valid reasons that were supported 9 by the record.”); Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1162-63 (9th Cir. 10 2008) (“Because we conclude that two of the ALJ’s reasons supporting his adverse 11 credibility finding are invalid, we must determine whether the ALJ’s reliance on such 12 reasons was harmless error. . . . [T]he relevant inquiry in this context is not whether the 13 ALJ would have made a different decision absent any error, it is whether the ALJ’s decision 14 remains legally valid, despite such error. . . . Here, the ALJ’s decision finding Carmickle 15 less than fully credible is valid, despite the errors identified above.”). Thus, the Court turns 16 to the subset of rationales that were deemed valid in the R&R. 17 1. Inconsistency With Imaging/Medical Records 18 One of the ALJ’s reasons for discrediting Plaintiff’s symptom testimony was that 19 her alleged musculoskeletal symptoms were inconsistent with the evidence in the record 20 that generally showed only minor physical abnormalities on imaging. (AR at 31-34.) Such 21 inconsistency can serve as a permissible reason for discrediting a claimant’s symptom 22 testimony under Ninth Circuit law, at least if combined with other valid reasons. Smartt v. 23 Kijakazi, 53 F.4th 489, 498 (9th Cir. 2022) (“Claimants like Smartt sometimes 24 mischaracterize [Ninth Circuit law] as completely forbidding an ALJ from using 25 inconsistent objective medical evidence in the record to discount subjective symptom 26 testimony. That is a misreading of [Ninth Circuit law]. When objective medical evidence 27 in the record is inconsistent with the claimant’s subjective testimony, the ALJ may indeed 28 weigh it as undercutting such testimony. We have upheld ALJ decisions that do just that 1 in many cases.”); Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 2001) (“While 2 subjective pain testimony cannot be rejected on the sole ground that it is not fully 3 corroborated by objective medical evidence, the medical evidence is still a relevant factor 4 in determining the severity of the claimant’s pain and its disabling effects.”). 5 In her opening brief, Plaintiff challenged this rationale on the grounds that the ALJ 6 cherry-picked the evidence, failed to explain “how any of the negative findings the ALJ 7 highlighted in [Plaintiff’s] records was a basis to impugn the severity of [Plaintiff’s] 8 symptom testimony,” and “[a]s for [Plaintiff’s] lower extremity radiculopathy, the ALJ 9 cited to several treatment records that are well outside the relevant period, rendering those 10 citations unhelpful in supporting the ALJ’s belief that the medical evidence during the 11 relevant period was inconsistent with [Plaintiff’s] symptom testimony.” (Doc. 21 at 18- 12 19.) The R&R concludes these challenges are unavailing—among other things, the R&R 13 notes that the ALJ expressly compared Plaintiff’s pre- and post-onset lumbar and lower 14 extremity radiculopathy imaging records, “went on to explain why these more recent 15 records did not alter his conclusions,” and explained why the “post-onset records . . . [were] 16 inconsistent with Plaintiff’s statements of disabling impairment.” (Doc. 27 at 20-21.) 17 In her objections, Plaintiff does not appear to address (let alone challenge) the 18 specific portion of the R&R containing this analysis, which means that any challenge to 19 this portion of the R&R is forfeited. Thomas, 474 U.S. at 149-50. At any rate, the Court 20 would adopt this well-reasoned portion of the R&R even if an objection had been raised. 21 2. Failure to Follow Treatment Recommendations 22 Another of the ALJ’s reasons for discrediting Plaintiff’s symptom testimony was 23 that she only pursued limited treatment for her musculoskeletal symptoms and failed to 24 complete several recommended courses of treatment. (AR at 33-34 [noting that Dr. 25 Manganelli “ordered up a functional capacity assessment” and then wrote that Plaintiff 26 “[d]id not get a functional capacity assessment” and that a different medical provider 27 “report[ed] that [Plaintiff] ‘has not been diligent in performing a home exercise 28 program’”].) This, too, is a permissible basis for discrediting a claimant’s symptom 1 testimony under Ninth Circuit law. See, e.g., Chaudry v. Astrue, 688 F.3d 661, 672 (9th 2 Cir. 2012) (affirming ALJ’s rejection of symptom testimony in part because “Chaudhry 3 repeatedly failed to seek treatment . . . or follow prescribed courses of treatment”); Orn v. 4 Astrue, 495 F.3d 625, 638 (9th Cir. 2007) (“Our case law is clear that if a claimant 5 complains about disabling pain but fails to seek treatment, or fails to follow prescribed 6 treatment, for the pain, an ALJ may use such failure as a basis for finding the complaint 7 unjustified or exaggerated.”); Greger v. Barnhart, 464 F.3d 968, 972 (9th Cir. 2006) 8 (concluding that “[t]he ALJ provided clear and convincing reasons for rejecting Greger’s 9 testimony” where one of the ALJ’s proffered reasons was that “there was no evidence that 10 Greger participated in a planned cardiac rehabilitation program”). 11 In her opening brief, Plaintiff failed to address this portion of the ALJ’s analysis. 12 (Doc. 21.) In the answering brief, the Commissioner pointed out this omission and 13 identified the failure to followed prescribed courses of treatment as one of the reasons why 14 the ALJ’s decision should be affirmed. (Doc. 25 at 13.) Nevertheless, Plaintiff still did 15 not address this issue in her reply brief. (Doc. 26.) Accordingly, the R&R concludes that 16 this portion of the ALJ’s analysis should be affirmed, both based on waiver/forfeiture 17 principles and on the merits: “‘[A]n unexplained, or inadequately explained, failure to seek 18 treatment or follow a prescribed course of treatment’ can be a clear and convincing reason 19 to reject symptoms testimony. Plaintiff offers no explanation or reason for her failure to 20 pursue the functional capacity assessment or follow the prescribed exercise program, nor 21 why they were not clear and convincing reasons to reject her symptoms testimony.” (Doc. 22 27 at 23-24, citations omitted.) 23 In her objections, Plaintiff addresses this issue for the first time: “The ALJ did not 24 explicitly state that [failure to follow treatment recommendations] was a reason to reject 25 [her] symptom testimony, and it is clear from the ALJ decision that this was merely an 26 observation the ALJ made about [Plaintiff’s] treatment within a litany of other statements. 27 The R&R’s argument that the ALJ did so is improper post hoc rationale. An established 28 principle of judicial review is that a reviewing court may not affirm based on facts or 1 rationale upon which the agency did not rely. Further, [Plaintiff] was not asked about these 2 issues at the hearing, and without an opportunity to explain a failure to comply with 3 recommended treatment, this is not a specific, clear, and convincing reason to reject 4 [Plaintiff’s] symptom testimony.” (Doc. 28 at 6-7, citations omitted.) In response, the 5 Commissioner argues that Plaintiff forfeited the issue by not raising it in her opening brief, 6 and alternatively that the objection fails on the merits because (1) “contrary to Plaintiff’s 7 argument that both the Commissioner and Magistrate Judge Metcalf engaged in post-hoc 8 rationalization, the ALJ’s cited statements about Plaintiff’s limited spinal/musculoskeletal 9 treatment ended with the conclusion that such medical evidence ‘does not support a finding 10 of disability’”; and (2) “there ‘is no merit in [Plaintiff’s] contention that the ALJ should 11 have given her a chance, while at the hearing, to explain the inconsistent statements and 12 other factors that led him to find her not credible’ . . . . [T]he ALJ noted that Plaintiff’s 13 limited pursuit of recommended treatment did not prevent her from being ‘quite stable’ for 14 long periods. When the ALJ asked Plaintiff about her treatment for spinal/musculoskeletal 15 pain, Plaintiff affirmed that she took medication ‘as needed’ about four times a week, 16 which ‘resolve[d]’ her pain symptoms. Plaintiff’s stability undermined her testimony 17 because of the implication that stemmed from her limited yet beneficial treatment.” (Doc. 18 29 at 5-6, citations omitted.) 19 The Commissioner has the better of these arguments. First, Plaintiff waived any 20 challenge to the ALJ’s “failure to follow treatment recommendations” rationale by failing 21 to raise such a challenge in her opening brief. Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th 22 Cir. 2001); Warre v. Comm’r of Soc. Sec. Admin,, 439 F.3d 1001, 1007 (9th Cir. 2006) 23 (“Although Plaintiff made that argument to the Commissioner, she did not raise it before 24 the district court. Accordingly, this issue is waived, and we do not consider it.”). In a 25 related vein, a party generally may not raise new arguments for the first time in an objection 26 to an R&R. Martin v. Barnes, 2015 WL 3561554, *1 (C.D. Cal. 2015) (“This Court, in its 27 discretion, has declined to consider new evidence and arguments which petitioner seeks to 28 present for the first time in his objections. Indeed, new arguments and factual assertions 1 . . . raised for the first time in objections to the report and recommendation . . . may not be 2 deemed objections at all. The only proper purpose of an objection to an R & R is to identify 3 a specific defect of law, fact, or logic in the Magistrate Judge’s analysis. . . . An R & R 4 cannot have analyzed an argument or evidence which the objecting party failed to present 5 prior to its issuance, so a Report’s ‘failure’ to address such arguments or evidence cannot 6 be a defect.”) (cleaned up).1 7 Second, and alternatively, the objection fails on the merits. The ALJ adequately 8 described why Plaintiff’s failure to follow treatment recommendations undermined 9 Plaintiff’s symptom testimony and credibility. As noted, this is a permissible basis for 10 discrediting symptom testimony under Ninth Circuit law. Chaudry, 688 F.3d at 672; Orn, 11 495 F.3d at 638; Greger, 464 F.3d at 972. Also, contrary to Plaintiff’s burden-shifting 12 argument, it was Plaintiff’s responsibility to provide an explanation for her non- 13 compliance, which she failed to do. Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989) 14 (“[T]here must . . . be some types of evidence capable of being introduced at a hearing on 15 which an ALJ can rely to find a pain allegation incredible. . . . [One] such form of evidence 16 is an unexplained, or inadequately explained, failure to seek treatment or follow a 17 prescribed course of treatment. While there are any number of good reasons for not doing 18 so, a claimant’s failure to assert one, or a finding by the ALJ that the proffered reason is 19 not believable, can cast doubt on the sincerity of the claimant’s pain testimony.”) (citations 20 omitted and emphasis added). Even if a different factfinder could have concluded, based 21 on the totality of Plaintiff’s treatment history, that the cited instances of non-compliance 22 did not undermine Plaintiff's credibility, it was rational for the ALJ to reach a different 23 conclusion here and find that the episodes were discrediting. And “[w]here the evidence 24 is susceptible to more than one rational interpretation, one of which supports the ALJ’s 25

26 1 The Court recognizes that it has discretion to consider new arguments raised for the first time in response to an R&R. Brown v. Roe, 279 F.3d 742 (9th Cir. 2002). 27 Nevertheless, the Court declines in its discretion to allow Plaintiff to do so here, where Plaintiff was represented by counsel, had a full and fair opportunity to address the failure- 28 to-follow-treatment-recommendations issue in her opening brief, and again failed to address the issue in her reply brief even after it was raised in the answering brief. 1 decision, the ALJ’s conclusion must be upheld.” Thomas v. Barnhart, 278 F.3d 947, 954 2 (9th Cir. 2002). 3 3. Failure To Disclose Relief From Particular Course Of Treatment 4 Yet another of the ALJ’s reasons for discrediting Plaintiff’s symptom testimony was 5 that she failed to report to her treatment providers that she was obtaining relief through a 6 particular course of treatment (leg elevation). (AR at 35 [“During the hearing, the claimant 7 testified that she elevates her legs (using a pillow under her legs and feet) once per day for 8 a duration of approximately one hour while in a reclined position . . . [but] while the 9 claimant was counseled to elevate her left leg at a medical evaluation on November 25, 10 2019 (5 days after her left knee arthroscopy and partial medial meniscectomy), there is no 11 other reference to leg elevation (either as a recommended treatment modality or as self- 12 reporting of her own activity to alleviate symptoms) in any of her subsequent longitudinal 13 medical records. These inconsistencies undermine the persuasiveness of the claimant’s 14 impairment allegations.”].) 15 In her opening brief, Plaintiff challenged this rationale as follows: “[Plaintiff] did 16 not testify that a doctor told her she had to elevate her legs, it was just a position that she 17 found relieved some pain for about an hour during the day. The ALJ’s belief, that because 18 a reference to leg elevation did not appear in the medical records [Plaintiff’s] symptom 19 testimony was invalid, is not a clear and convincing reason to reject [Plaintiff’s] symptom 20 testimony and is not supported by substantial evidence.” (Doc. 21 at 21.) In response, the 21 Commissioner argued that “[a] failure to report allegedly chronic issues to treatment 22 providers can undermine those complaints.” (Doc. 25 at 12-13.) Plaintiff did not further 23 address this issue in her reply brief. (Doc. 26.) In the R&R, Judge Metcalf agrees with the 24 Commissioner in relevant part, reasoning as follows: “The Commissioner fails to explain 25 how the mere fact of self-help treatment is a clear and convincing reason to reject 26 symptoms testimony. For example, the Commissioner does not suggest that Plaintiff had 27 been advised against such activity, or that there was evidence it was ineffective. Such self- 28 help is by itself indicative (rather than contraindicatory) of unresolved symptoms. 1 Engaging in the unprescribed leg elevating activity was not a clear and convincing reason 2 to reject Plaintiff’s symptoms testimony. On the other hand, failing to report such activity 3 and its salutary effects is incongruent with Plaintiff’s claims of disabling pain. A patient 4 who finds a means for self-relief (particularly one that is illicit) would reasonably be 5 expected to report that to a physician providing her care for such pain. Consequently, the 6 undersigned concludes that the ALJ erred as to the leg elevating only as to the engagement 7 in the activity.” (Doc. 27 at 25, emphasis added.) 8 In her objections, Plaintiff makes only a passing reference to this analysis, arguing 9 that the R&R “left unexplained” why the leg-raising evidence could be discrediting in some 10 respects but not discrediting in others. (Doc. 28 at 6.) The Court disagrees. The R&R 11 explains that, although the fact that Plaintiff engaged in leg-raising activity does not 12 discredit her symptom testimony (and, if anything, tends to support the notion that she was 13 suffering from pain that required alleviation), her failure to report such activity (and its 14 beneficial effects) to her treatment providers is a credibility consideration that the ALJ 15 could have permissibly taken into account, because it is the sort of thing that would 16 normally be expected to be reported. Although the parties have not cited (and the Court 17 has been unable to identify through its own research) any Ninth Circuit decision 18 specifically addressing whether this sort of omission is a permissible basis for making an 19 adverse credibility finding, the Court agrees with the R&R that it should be deemed 20 permissible. For the same reasons that a claimant’s failure to report symptoms to treatment 21 providers can serve as a permissible basis for an adverse credibility finding, see, e.g., 22 Greger, 464 F.3d at 972, a claimant’s failure to report that she is experiencing relief from 23 symptoms through a particular course of treatment can also be discrediting—such an 24 omission may suggest that the claimant is not being straightforward with the treatment 25 provider and is exaggerating her symptoms. Any contrary rule would erode the principle 26 that, when “determin[ing] whether the claimant’s testimony regarding the severity of her 27 symptoms is credible, the ALJ may consider . . . ordinary techniques of credibility 28 1 evaluation.” Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996).2 2 B. RFC Determination 3 The second assignment of error in Plaintiff’s opening brief is that the ALJ 4 “commit[ted] materially harmful error by failing to support the [RFC] determination with 5 substantial evidence.” (Doc. 21 at 1, 23-25.) 6 The R&R recommends that this challenge be rejected. (Doc. 27 at 27-31.) At the 7 outset, the R&R explains: “It is true that the ALJ did not undertake a restriction-by- 8 restriction explanation for the RFC. However, with several notable exceptions, the ALJ 9 left a reasonably discernible path from his review of the evidence to his conclusions on the 10 RFC.” (Id. at 28.) More specifically, the R&R notes that the ALJ expressly considered 11 Plaintiff’s symptom testimony; expressly considered the findings and opinions of the state 12 agency psychologists and state agency physicians; and ultimately adopted an RFC that 13 “was more restrictive than that of these physicians.” (Id. at 28-29.) Although the R&R 14 faults the ALJ for not providing an adequate rationale for rejecting some of those 15 physicians’ opinions, it concludes that “[b]ecause the rejected portion of the physicians’ 16 opinions was unfavorable to Plaintiff, no harm resulted to Plaintiff.” (Id. at 29-30.) The 17 R&R also notes that “[i]t is tempting to pivot and rely on this lack of reasoning to attack 18 the ALJ’s reliance at all on the physicians’ opinions (focusing on the half empty, rather 19 than the half full portion of the glass)” but concludes that any such argument would fail for 20 two independent reasons: (1) “an ALJ is not required to offer reasons for giving weight to 21 a physician’s opinion (at least in the absence of conflicting medical opinions)”; and (2) 22 Plaintiff did not argue, in her opening brief, that it was error for the ALJ to rely on the 23 opinions of the state agency physicians. (Id. at 30 & n.14.) The R&R thus concludes: “[I]n 24 determining the RFC and thus ultimately finding no disability, the ALJ expressed reasons 25 which were properly relied upon, including: (1) his rejection of portions of Plaintiff’s 26 2 Alternatively, even if the ALJ erred in relying on such omissions as part of the 27 credibility determination, any error was harmless in light of the ALJ’s identification of multiple other clear and convincing reasons, supported by substantial evidence, for 28 discrediting Plaintiff’s testimony. Molina, 674 F.3d at 1115; Carmickle, 533 F.3d at 1162- 63. 1 symptoms testimony; (2) the opinions of the state agency psychologists; (3) the opinions 2 of the state agency physicians; and (4) a nonmedical source. Thus Plaintiff fails to show 3 an absence of reasons supported by substantial evidence. To the extent some of the reasons 4 were wholly or partially erroneous (e.g. the reliance on activities of daily living), the 5 balance of the reasons renders such error harmless.” (Id. at 31.) 6 In her objections, Plaintiff focuses on the R&R’s analysis of the state agency 7 physicians’ opinions. (Doc. 28 at 8-9.) First, Plaintiff disputes the R&R’s determination 8 that she forfeited any “claim that that ALJ failed to provide sufficient reasons to rely on 9 the state agency nonexamining opinions” by failing to raise such a claim in her opening 10 brief. (Id. at 8.) Second, Plaintiff argues that under Woods v. Kijakazi, 32 F.4th 785 (9th 11 Cir. 2002), an ALJ must make findings as to the consistency and supportability factors 12 when evaluating the opinions of any medical source. (Id. at 9.) In response, the 13 Commissioner argues that the ALJ expressly considered those factors when evaluating the 14 opinions of the state agency physicians, and indeed partially discounted their opinions on 15 the basis of those factors. (Doc. 29 at 8-9.) More broadly, the Commissioner argues that 16 “Plaintiff’s objections do not overcome the ALJ’s findings. . . . Although Plaintiff argues 17 that ALJ’s RFC finding was not based on relevant substantial evidence, she does not 18 dispute that the ALJ balanced the longitudinal evidence with Drs. Schnute’s and Dow’s 19 opinions. Nor does Plaintiff confront how the RFC matched opinions on Plaintiff’s mental 20 functioning that the ALJ found were ‘generally consistent’ with the medical evidence. As 21 discussed, the medical opinions, the objective evidence, and Plaintiff’s course of treatment 22 were relevant substantial evidence for the ALJ’s RFC finding. The ALJ’s extensive 23 analysis of the evidence (including the opinions) provides the Court with ample reasoning 24 to determine that the ALJ’s conclusions were supported by substantial evidence. 25 Furthermore, Plaintiff has not shown how any deviation from the opinion evidence was 26 harmful. . . . The ALJ did not err by moderating medical opinions to Plaintiff’s benefit. 27 His adjusting of the opinions was based on substantial evidence and clearly outlined 28 vocational terms.” (Id. at 9-10.) 1 The Court agrees with the Commissioner on these points and agrees with the R&R’s 2|| conclusion that Plaintiff's second assignment of error should be rejected. Cf Petty v. Colvin, 2014 WL 1116992, *17 (D. Ariz. 2014) (“Although the ALJ found Plaintiff more limited than an examining doctor’s assessment of her limitations, Plaintiff has not cited 5 || any authority indicating that an ALJ cannot moderate ‘the full adverse force of a medical 6 || opinion’ in a manner that is more favorable to a claimant.”) (citing Chapo v. Astrue, 682 7\| F.3d 1285, 1288 (10th Cir. 2012)). 8 Accordingly, 9 IT IS ORDERED that: 10 (1) ~~ Plaintiffs objections to the R&R (Doc. 28) are overruled. 11 (2) The R&R (Doc. 27) is adopted. 12 (3) The decision of the ALJ is affirmed. 13 (4) The Clerk shall enter judgment accordingly and terminate this action. 14 Dated this 7th day of March, 2023. 15 16 Lm ee” 17 f t _o—— Dominic W, Lanza 18 United States District Judge 19 20 21 22 23 24 25 26 27 28

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