6 UNITED STATES DISTRICT COURT 7 8 EASTERN DISTRICT OF CALIFORNIA 9 SHAWN MCKEE, Case No. 1:25-cv-00362-JLT-SAB 10 Plaintiff, FINDINGS AND RECOMMENDATIONS 11 RECOMMENDING AFFIRMING DECISION v. OF THE COMMISSIONER OF SOCIAL 12 SECURITY COMMISSIONER OF SOCIAL 13 SECURITY, (ECF Nos. 13, 16) 14 Defendant.
15 16 Plaintiff Shawn McKee (“Plaintiff”) seeks judicial review of a final decision of the 17 Commissioner of Social Security (“Commissioner”) denying his application for a period of 18 disability and disability insurance benefits pursuant to the Social Security Act. The matter was 19 automatically referred to the undersigned for the preparation of findings and recommendations, 20 Local Rule 302(c)(15), and it is currently before the Court on the parties’ briefs, which were 21 submitted without oral argument. 22 Plaintiff requests the decision of Commissioner be vacated and the case be remanded for 23 further proceedings, arguing that the decision below was not supported by substantial evidence. 24 Specifically, Plaintiff argues that the Administrative Law Judge (“ALJ”) erred in its analysis of 25 Plaintiff’s subjective complaints and his activities of daily living. Plaintiff further argues that the 26 record is incomplete and that Dictionary of Occupational Titles (“DOT”) is obsolete. 27 For the reasons explained herein, the Court will recommend affirming the final decision of the Commissioner. 1 I. 2 BACKGROUND 3 A. Procedural History 4 On April 11, 2022, Plaintiff filed a Title II application for a period of disability and 5 disability insurance benefits, alleging disability beginning August 10, 2019. (ECF No. 10, 6 Administrative Record (“AR”), 21.) Plaintiff’s application was initially denied on July 22, 2022, 7 and denied upon reconsideration on September 21, 2022. (Id.) Plaintiff requested before a 8 hearing before an ALJ. On July 25, 2023, Plaintiff, represented by counsel, appeared for a 9 hearing in front of an ALJ. (Id.) Plaintiff, vocation expert (“VE”) Cheryl Chandler, and cardiac 10 specialist Warren Isreal, MD, testified. (Id.) On March 14, 2024, the ALJ issued a decision 11 concluding that Plaintiff was not disabled, as defined by the Social Security Act, from August 10, 12 2019, through March 31, 2022, the date last insured. (AR 31.) On January 16, 2025, the Appeals 13 Council denied Plaintiff’s request for review. (AR 1-5.) 14 B. The ALJ’s Findings of Fact and Conclusions of Law 15 In the decision, the ALJ found that Plaintiff last met the insured status requirements of the 16 Social Security Act on March 31, 2022, and that Plaintiff had not engaged in substantial gainful 17 activity from his alleged onset date of August 10, 2019, through his date last insured of March 31, 18 2022. (AR. 23.) The ALJ found that Plaintiff had the following severe impairments: disorder of 19 the lumbar spine, lumbosacral radiculitis lumbar degenerative disc disease; disorder of the 20 cervical spine; myocardial infraction with hospitalization; coronary artery disease (CAD); Non- 21 ST elevated myocardial infarction with history of CABG/CAD x3 vessels; abdominal aortic 22 aneurysm, and PAD disorder of the left ring finger. (AR 23-24.) However, through the date last 23 insured, Plaintiff did not have an impairment or combination of impairments that met or 24 medically equaled the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, 25 Appendix 1. (AR 24.) 26 After considering the entire record, the ALJ found that Plaintiff had the residual functional 27 capacity (“RFC”) to perform light work as defined in 20 C.F.R. § 404.1567(b). Specifically, the 1 push and pull within those weight limits. He could sit 8 hours in an 8-hour workday one hour at a 2 time taking a one minute to stand and stretch at the end of each hour. He could stand up to 4 3 hours in an 8-hour workday up to one hour at a time and then would need to change positions for 4 one minute. He could walk 4 hours in an 8-hour workday and could walk up to one hour at a time 5 before needing to stand or sit for one minute. Plaintiff should have a sit/stand option but he 6 would not need to leave the work station and would not be off task. He would not need to change 7 positions more than every 30 minutes for one to two minutes. Overhead reaching with the right 8 dominant upper extremity was limited to frequent. He could occasionally climb ramps and stairs, 9 as well as ladders, ropes, and scaffold. He could frequently stoop, kneel, crouch, and crawl. He 10 should not be exposed to concentrated exposure to humidity, wetness, or extreme temperatures, as 11 well as no concentrated exposure to respiratory irritants such as fumes, dusts, gases, or poor 12 ventilation. He was precluded from job sites with very loud noise like blasting, but office type 13 noise was ok. He should avoid jobs that require typing or where the use of the third finger on the 14 left non-dominant hand would be necessary. The loss of use of the left non-dominant third finger 15 would not impact handling and fingering except in instances where the third finger of the left non- 16 dominant hand was necessary as in typing. (AR 24-25.) 17 The ALJ then found that that Plaintiff was unable to perform any past relevant work, he 18 was 52 years old on the date last insured, and he had at least a high school education. (AR 29- 19 30.) The ALJ discussed that transferability of job skills was not material to the determination of 20 disability because Plaintiff’s past relevant work was unskilled. (AR 30.) Considering Plaintiff’s 21 age, education, work experience, and RFC, the ALJ found that there were jobs that existed in 22 significant numbers in the national economy that Plaintiff could have performed through the date 23 last insured. (Id.) Accordingly, the ALJ concluded that Plaintiff had not been under disability, as 24 defined by the Social Security Act, from August 10, 2019, the alleged onset date, through March 25 31, 2022, the date last insured. (AR 31.) 26 Plaintiff sought timely review of the Commissioner’s decision in the federal courts. (ECF 27 1 No. 1.) Thereafter, the parties filed their briefs on the matter. (ECF Nos. 13, 16, 17.)1 2 II. 3 LEGAL STANDARD 4 A. The Disability Standard 5 To qualify for disability insurance benefits under the Social Security Act, a claimant must 6 show she is unable “to engage in any substantial gainful activity by reason of any medically 7 determinable physical or mental impairment which can be expected to result in death or which has 8 lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 9 423(d)(1)(A). The Social Security Regulations set out a five-step sequential evaluation process to 10 be used in determining whether a claimant is disabled. 20 C.F.R. § 404.1520;2 Batson v. 11 Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1194 (9th Cir. 2004). The five steps in the 12 sequential evaluation in assessing whether the claimant is disabled are: 13 Step one: Is the claimant presently engaged in substantial gainful activity? If so, the claimant is not disabled. If not, proceed to step two. 14 Step two: Is the claimant’s alleged impairment sufficiently severe to limit his or her 15 ability to work? If so, proceed to step three. If not, the claimant is not disabled. 16 Step three: Does the claimant’s impairment, or combination of impairments, meet or equal an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1? If so, the 17 claimant is disabled. If not, proceed to step four. 18 Step four: Does the claimant possess the residual functional capacity (“RFC”) to perform his or her past relevant work? If so, the claimant is not disabled. If not, 19 proceed to step five. 20 1 On December 1, 2022, the Supplemental Rules for Social Security became effective. Rule 5 states, “[t]he action is 21 presented for decision by the parties’ briefs.” Fed. R. Civ. P. Appx. Rule 5. The 2022 Advisory Committee noted that “Rule 5 states the procedure for presenting for decision on the merits a [42 U.S.C.] § 405(g) review action that 22 is governed by the Supplemental Rules.” Fed. R. Civ. P. Appx. Rule 5 advisory committee note 2022. Like an appeal, “the briefs present the action for decision on the merits. This procedure displaces summary judgment or 23 such devices as a joint statement of facts as the means of review on the administrative record.” Id. The 2022 Advisory Committee unambiguously clarified that “Rule 5 also displaces local rules or practices that are inconsistent 24 with the simplified procedure established by these Supplemental Rules for treating the action as one for review on the administrative record.” Id. Here, Plaintiff filed a motion for summary judgment, which the Court will construe 25 as a brief in support of his position on whether the Court should affirm, modify, or reverse the decision of the Commissioner. Fed. R. Civ. P. Appx. Rule 5; 42 U.S.C. § 405(g).
26 2 The regulations which apply to disability insurance benefits, 20 C.F.R. §§ 404.1501 et seq., and the regulations which apply to SSI benefits, 20 C.F.R. §§ 416.901 et seq., are generally the same for both types of benefits. 27 Accordingly, while Plaintiff seeks only Social Security benefits under Title II in this case, to the extent cases cited herein may reference one or both sets of regulations, the Court notes these cases and regulations are applicable to the 1 Step five: Does the claimant’s RFC, when considered with the claimant’s age, education, and work experience, allow him or her to adjust to other work that exists in 2 significant numbers in the national economy? If so, the claimant is not disabled. If not, the claimant is disabled. 3 4 Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 2006). The burden of proof is 5 on the claimant at steps one through four. Ford v. Saul, 950 F.3d 1141, 1148 (9th Cir. 2020). A 6 claimant establishes a prima facie case of qualifying disability once she has carried the burden of 7 proof from step one through step four. 8 Before making the step four determination, the ALJ first must determine the claimant’s 9 RFC. 20 C.F.R. § 416.920(e). The RFC is “the most [one] can still do despite [his or her] 10 limitations” and represents an assessment “based on all the relevant evidence.” 20 C.F.R. §§ 11 404.1545(a)(1), 416.945(a)(1). The RFC must consider all the claimant’s impairments, including 12 those that are not severe. 20 C.F.R. §§ 416.920(e); 416.945(a)(2); Social Security Ruling 13 (“SSR”) 96-8p, 1996 WL 374184 (July 2, 1996).3 “[I]t is the responsibility of the ALJ, not the 14 claimant’s physician, to determine residual functional capacity.” Vertigan v. Halter, 260 F.3d 15 1044, 1049 (9th Cir. 2001); 20 C.F.R. §§ 404.1545(a)(1), 404.1546(c). 16 At step five, the burden shifts to the Commissioner, who must then show that there are a 17 significant number of jobs in the national economy that the claimant can perform given her RFC, 18 age, education, and work experience. 20 C.F.R. § 416.912(g); Lounsburry v. Barnhart, 468 F.3d 19 1111, 1114 (9th Cir. 2006). To do this, the ALJ can use either the Medical Vocational Guidelines 20 (“grids”) or rely upon the testimony of a VE. See 20 C.F.R. § 404 Subpart P, Appendix 2; 21 Lounsburry, 468 F.3d at 1114; Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001). 22 “Throughout the five-step evaluation, the ALJ ‘is responsible for determining credibility, 23 resolving conflicts in medical testimony, and for resolving ambiguities.’” Ford, 950 F.3d at 1149, 24 quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). 25 / / / 26 3 SSRs are “final opinions and orders and statements of policy and interpretations” issued by the Commissioner. 20 27 C.F.R. § 402.35(b)(1). While SSRs do not have the force of law, the Court gives the rulings deference “unless they are plainly erroneous or inconsistent with the Act or regulations.” Han v. Bowen, 882 F.2d 1453, 1457 (9th Cir. 1 B. Standard of Review 2 Congress has provided that an individual may obtain judicial review of any final decision 3 of the Commissioner of Social Security regarding entitlement to benefits. 42 U.S.C. § 405(g). In 4 determining whether to affirm, modify, or reverse an ALJ’s decision, the Court reviews only 5 those issues raised by the party challenging the decision. See Lewis v. Apfel, 236 F.3d 503, 517 6 n.13 (9th Cir. 2001). Further, the Court’s review of the Commissioner’s decision is a limited one; 7 the Court may not disturb the Commissioner’s final decision unless it is based on legal error or 8 the findings of fact are not supported by substantial evidence. 42 U.S.C. § 405(g); Reddick v. 9 Chater, 157 F.3d 715, 720 (9th Cir. 1998). “[T]he threshold for such evidentiary sufficiency is 10 not high.” Biestek v. Berryhill, 587 U.S. 97, 103 (2019). Rather, “[s]ubstantial evidence is more 11 than a mere scintilla, and means only such relevant evidence as a reasonable mind might accept as 12 adequate to support a conclusion.” Stiffler v. O’Malley, 102 F.4th 1102, 1106 (9th Cir. 2024), 13 quoting Ford, 950 F.3d at 1154. In other words, “[s]ubstantial evidence is relevant evidence 14 which, considering the record as a whole, a reasonable person might accept as adequate to support 15 a conclusion.” Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002), quoting Flaten v. Sec’y of 16 Health & Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995). 17 Should the ALJ err, the Court will not reverse where the error was harmless. Stout, 454 18 F.3d at 1055-56. “An error is harmless only if it is ‘inconsequential to the ultimate nondisability 19 determination.’” Leach v. Kijakazi, 70 F.4th 1251, 1255 (9th Cir. 2023), quoting Lambert v. 20 Saul, 980 F.3d 1266, 1278 (9th Cir. 2020). The burden of showing that an error is not harmless 21 “normally falls upon the party attacking the agency’s determination.” Molina v. Astrue, 674 F.3d 22 1104, 1111 (9th Cir. 2012), quoting Shinseki v. Sanders, 556 U.S. 396, 409 (2009). 23 Finally, “a reviewing court must consider the entire record as a whole and may not affirm 24 simply by isolating a specific quantum of supporting evidence.” Hill v. Astrue, 698 F.3d 1153, 25 1159 (9th Cir. 2012), quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006). 26 Nor may the Court affirm the ALJ on a ground upon which he or she did not rely; rather, the 27 Court may review only the reasons stated by the ALJ in his decision. Orn v. Astrue, 495 F.3d 1 not this Court’s function to second guess the ALJ’s conclusions and substitute the Court’s 2 judgment for the ALJ’s; rather, if the evidence “is susceptible to more than one rational 3 interpretation, it is the ALJ’s conclusion that must be upheld.” Ford, 950 F.3d at 1154, quoting 4 Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 5 III. 6 DISCUSSION AND ANALYSIS 7 Plaintiff argues that this matter should be reserved and remanded for three reasons. First, 8 Plaintiff argues that the ALJ failed to properly analyze Plaintiff’s subjective symptom testimony, 9 including improperly using activities of daily living (“ADLs”) in the analysis. (ECF No. 13, pp. 3- 10 10.) Second, Plaintiff asserts that the record is incomplete because of an incomplete hearing 11 transcript. (Id. at pp. 10-11.) Third, Plaintiffs contends that the DOT is obsolete. The 12 Commissioner opposes, arguing that substantial evidence supports the ALJ’s decision. (ECF No. 13 16.) The Court agrees with the Commissioner. 14 A. Plaintiff’s Subjective Complaints 15 For this issue, Plaintiff essentially asserts that the ALJ gave only a general summary of the 16 evidence and did not delineate what evidence undermined Plaintiff’s alleged limitations. This 17 argument is unavailing. 18 “The ALJ is responsible for determining credibility, resolving conflicts in medical 19 testimony, and for resolving ambiguities.” Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014), 20 quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir.1995). As relevant here, where the ALJ 21 “determines that a claimant . . . is not malingering and has provided objective medical evidence of 22 an underlying impairment which might reasonably produce the pain or other symptoms she 23 alleges, the ALJ may reject the claimant’s testimony about the severity of those symptoms only by 24 providing specific, clear, and convincing reasons for doing so.” Lambert, 980 F.3d at 1277, 25 quoting Brown-Hunter v. Colvin, 806 F.3d 487, 488-89 (9th Cir. 2015). “Ultimately, the ‘clear 26 and convincing’ standard requires an ALJ to show his work.” Smartt v. Kijakazi, 53 F.4th 489, 27 499 (9th Cir. 2022). An ALJ must show their work by “identify[ing] the testimony [from a 1 testimony.” Lambert, 980 F.3d at 1277, quoting Treichler v. Comm. of Soc. Sec. Admin., 775 2 F.3d 1090, 1102 (9th Cir. 2014). Boilerplate statements and general summaries of the evidence, 3 without more, are not enough. Id. at 1277-78. That said, an ALJ is not required “to perform a 4 line-by-line exegesis of the claimant’s testimony” or “draft dissertations when denying benefits.” 5 Id. at 1277. 6 While “an ALJ cannot insist on clear medical evidence to support each part of a claimant’s 7 subjective pain testimony when there is no objective testimony evincing otherwise, . . . [w]hen 8 objective medical evidence in the record is inconsistent with the claimant’s subjective testimony, 9 the ALJ may indeed weigh it as undercutting such testimony.” Smartt, 53 F.4th at 498 (emphasis 10 in original). Indeed, “[c]ontradiction with the medical record is a sufficient basis for rejecting the 11 claimant’s subjective testimony.” Carmickle v. Commissioner, Social Sec. Admin., 533 F.3d 12 1155, 1161 (9th Cir. 2008). “The standard isn’t whether [a] court is convinced, but instead 13 whether the ALJ’s rationale is clear enough that it has the power to convince.” Smartt, 53 F4th at 14 499.4
15 4 The Commissioner has long taken the position that the Ninth Circuit’s clear and convincing “standard” with regard a claim involving a claimant’s subjective testimony appears to conflict with the substantial evidence standard in 42 16 U.S.C. § 405(g). (ECF No. 16, p. 7 n.5.) The Court observes that perhaps the Ninth Circuit has not agreed with the Commissioner because the clear and convincing “standard”—in reality—is merely an expression of what, in this 17 area of Social Security, in this Circuit, constitutes substantial evidence under § 405(g). See Ahearn v. Saul, 988 F.3d 1111, 1115 (9th Cir. 2021), quoting Biestek v. Berryhill, 587 U.S. 1148, 102-03 (2019). Indeed, the Supreme 18 Court has observed that “[t]he phrase ‘substantial evidence’ is a ‘term of art’ used throughout administrative law to describe how courts are to review agency factfinding.” Biestek, 587 U.S. at 102, quoting T-Mobile South, LLC v. 19 Roswell, 574 U.S. 293, 301 (2015). Moreover, the Court notes that the Ninth Circuit’s early use of this type of language in the context of subjective testimony was in describing how an ALJ gave no or inadequate reasons for 20 discounting a claimant’s testimony. See Gallant v. Heckler, 753 F.2d 1450, 1456 (9th Cir. 1984). In other words, in Gallant, the Ninth Circuit noted that the ALJ had given “no clear or convincing reasons for rejecting such 21 [subjective testimony] claims.” Id.; cf. Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975) (discussing in a Social Security review context that the hearing examiner failed to expressly state clear and convincing reasons for 22 rejecting two uncontroverted medical opinions). Thus, it does not appear that the Ninth Circuit from the outset was necessarily attempting to align this type of analysis with the same “clear and convincing” standard of proof at trial in 23 civil cases.
24 However, through the passage of time, the standard for analyzing a claimant’s subjective testimony has been truncated to the shorthand phrase “clear and convincing” standard. See, e.g., Swenson v. Sullivan, 876 F.2d 683, 25 687 (9th Cir. 1989) (“The Secretary’s reasons for rejecting excess symptom testimony must be clear and convincing if medical evidence establishes an objective basis for some degree of the symptom and no evidence affirmatively suggests that the claimant was malingering.”); Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996) (“[T]he ALJ 26 can reject the claimant’s testimony about the severity of her symptoms only by offering specific, clear and convincing reasons for doing so.”); Smartt, 53 F.4th at 499 (“[W]e must determine whether the ALJ properly 27 discounted Smartt’s subjective testimony under the ‘clear and convincing’ standard.”). To be sure, the Ninth Circuit has stated that “[t]he clear and convincing standard is the most demanding required in Social Security cases,” 1 The ALJ summarized in part Plaintiff’s subjective complaints as follows: 2 The claimant alleged disability from two herniated discs, degenerative arthritis, heart attack, and chronic obstructive 3 pulmonary disease. On May 25, 2022, he completed a Function Report and stated he was unable to stand or sit for long periods. 4 He had little grip in his hand and could not lift more than 20 pounds. He was able to manage his personal care, prepare meals, 5 and could do laundry, as well as yardwork but no mowing. He walked daily, could shop in stores for groceries and could handle 6 his own funds. He liked to watch television, play the guitar daily but was more difficult now, and socializes in person. 7 (AR 25, citing Exhibits 2E-3E.) The ALJ then gave a summary of the medical evidence, where at 8 times the ALJ noted further subjective testimony from Plaintiff. (AR 26) For example, the ALJ 9 observed that, 10 The claimant presented to the cardiology center for follow-up 11 examinations. Within a month, he denied any chest pain, shortness of breath, nausea, vomiting, dizziness, palpitations, or syncope. 12 He also reported that he was compliant with his medications and tolerated them well. He also admitted to continuing smoking 13 cigarettes. The physical examinations were normal, including normal heart rate and rhythm, no murmurs, no rubs, and no gallops 14 (Exhibit 6F, pp. 3-4, 8-9, 18-19).
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16 On October 5, 2022, the claimant reported experiencing numbness in both of his legs but denied any pain when walking. He also 17 denied any chest pain, shortness of breath, nausea, vomiting, dizziness, palpitations, or syncope, palpitations, or edema. The 18 physical examination was normal for the heart and extremities 19 Social Security cases, signifying (at least to this Court) that it does not necessarily conflict with the substantial 20 evidence standard in 42 U.S.C. § 405(g).
21 With this understanding, the Court agrees with the Ninth Circuit’s continued use of this formulation for the legal standard regarding a claimant’s subjective testimony. That said, the Court also takes the position that clarification 22 by the Ninth Circuit on this point might be warranted in an appropriate case. Thus, the Court acknowledges that the Commissioner’s argument on this issue is taken. 23 With all that said, the Court wades into these murky waters only because in reply Plaintiff suggests that the 24 Commissioner seeks a “watered down” analysis with regard to Plaintiff’s subjective testimony. (ECF No. 17, pp. 2- 6.) Not so. The Commissioner, in a footnote, merely raises this argument ostensibly for purposes of preservation on 25 appeal. (ECF No. 16, p. 7 n.5.) In addition, the Court rejects Plaintiff’s contention that by raising an issue with the “clear and convincing” standard, that the Commissioner has somehow “forfeited this issue entirely.” (ECF No. 17, p. 2.) The Court finds that the Commissioner was clear that, “[n]onetheless, the ALJ’s findings pass the Ninth 26 Circuit’s [clear and convincing] test.” (ECF No. 16, p. 7 n.5.) Thus, the Commissioner’s ultimate position on this issue is for an affirmance under either ‘standard.’ 27 Having disposed of this auxiliary argument, the Court will continue to apply prevailing Ninth Circuit precedent in its 1 (Exhibit 9F, pp. 6-7).
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3 Although the claimant reported chest pain on May 16, 2023, the physical examination was normal. He was referred to have an 4 Echo with Doppler and Adenosine SPECT (Exhibit 13F, pp. 1-2).
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6 The claimant reported low back pain, bilateral lower extremity pain, numbness and tingling to the lower extremities more to the 7 left then the right. He also reported shoulder pain. Medication including Tramadol and Lyrica helped with the pain and caused no 8 side effects. He also reported adequate activity of daily living. Physical examinations showed positive tenderness of the lumbar 9 spine and posterior superior iliac spine. There were also positive straight leg raising tests and positive Hawkins in the right shoulder. 10 However, there was normal muscle strength of the lower extremities, negative Hoffman, and no edema (Exhibit 5F, pp. 12- 11 14, 16, 18).
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13 [Following a lumbar transforaminal epidural steroid injection,] the claimant reported his low back pain and bilateral lower extremity 14 pain was mostly stable. However, he reported having neck pain. He also continued to report walking every day, stretching every 15 morning, and having adequate activity of daily living with negative adverse reaction and negative abnormal behavior. Physical 16 examinations continued to show tenderness, positive straight leg raising on the left, decreased range of motion oof the lumbar spine, 17 but there was normal muscle strength of the lower extremities and 4/5 muscle strength in the upper extremities with no edema 18 (Exhibit 10F, pp. 4-11).
19 (AR 26-27.) Following the evaluation of medical opinions, the ALJ then returned to Plaintiff’s 20 subjective testimony regarding symptoms: 21 After careful consideration of the evidence, I find that the 22 claimant’s medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, the 23 claimant’s statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with 24 the medical evidence and other evidence in the record for the reasons explained in this decision. 25 As for the claimant’s statements about the intensity, persistence, 26 and limiting effects on his symptoms, they are inconsistent because cardio findings were stable. Diagnostic tests were generally mild 27 with normal ejection fraction. Physical examinations showed radiculopathy and reduced ranges of motion, but motor strength 1 ambulate properly (Exhibits 1F; 2F, p. 26; 5F, pp. 12-14, 16, 18; 6F, pp. 3-4, 8- 9, 13-14, 18-19; 9F, pp. 6-7; 10F, p. 10; 13F, pp, 3- 2 8; 14F, p. 10; 15F, pp. 3-6). 3 (AR 29.) 4 While the ALJ did not conduct a full summary of Plaintiff’s subjective complaints in one 5 area of the opinion, the Court finds that, in context, the ALJ adequately identified Plaintiff’s 6 subjective testimony and gave reasons for why the ALJ did not find certain portions credible. The 7 Court observes that the ALJ began with some general testimony from Plaintiff regarding total 8 disability, sitting, standing, grip, and lifting. The ALJ then went through a discussion of medical 9 evidence, identified testimony from Plaintiff regarding intensity, persistence, and limiting effects 10 on his symptoms, and gave exact reasons for discounting all or portions thereof. For example, the 11 ALJ identified that Plaintiff reported low back pain, bilateral lower extremity pain, numbness and 12 tingling to the lower extremities more to the left then to the right, as well as shoulder pain. (AR 13 27.) However, the ALJ also identified that Plaintiff was using medication, which helped and 14 caused no side effects. (Id.) The ALJ also discussed ADLs and physical exams that gave a fuller 15 picture to Plaintiff’s reports. (Id.) 16 Plaintiff argues that the ALJ’s opinion on this regard is nonetheless flawed in three 17 respects. The first two arguments collapse into each other; essentially Plaintiff argues that the ALJ 18 did not identify or briefly summarize the subjective symptom testimony from the hearing, which 19 would mean that the ALJ could not have linked any analysis to the identified testimony. Last, 20 Plaintiff argues that the ALJ relied only on boilerplate language in its analysis. In support of his 21 position, Plaintiff directs the Court to certain parts of the hearing testimony where Plaintiff 22 testified to symptoms (as well as ADLs):5 23 ATTORNEY: Shawn, I wanted to ask you about – the record shows that you suffered an amputation on your left ring finger. I 24 wanted to ask you if that affects your activities of daily living and provides any limitations to you. 25 PLAINTIFF: Yes, sir, it does. I have problems with such as 26 5 The Court notes that Plaintiff also directs the Court to the ALJ noting in the hearing that Plaintiff had shortness of 27 breath during an adenosine drug administration. (ECF No. 13-1, p. 6.) The Court finds this to be an observation in a medical opinion of a physical reaction, not subjective testimony by Plaintiff regarding his symptoms. In any event, 1 buttoning pants, holding things in my hand, typing I have problems with. . . . It’s hard for me to put into words. It’s several 2 compounded little things that people take for granted—buttoning pants, tying shoes, holding silverware correctly is—things are 3 awkward in regard to the left hand and it does cause pain. The finger was reattached and it doesn’t bend properly, so. I used to 4 play guitar; I can’t play like I used to. That’s basically all I can think of as far as – like it’s on the left hand. 5 ATTORNEY: Shawn, I want to ask you about, you know, your 6 heart condition, the heart attack. I know we spoke [to] a medical examiner as to more technical aspects of that but I want to get from 7 your words essentially how your heart condition affects your everyday life if anything, any examples you can provide. 8 PLAINTIFF: I am constantly tired. I know he said that I said I do 9 a lot of walking, I do not walk as much as he was portraying. I try to walk a block a day and that wears me out. I’m out of breath, 10 I’m tired, and I just have no energy whatsoever. Now I don’t know that that’s due to heart issues, or COPD issues, or the 11 combination of both but I—I have to force myself to get out of bed and that in itself is a process as he said. The doctor mentioned the 12 stretching, I do stretch every morning. They are very minimal stretches to loosen my back. They are exercises—bridge exercise. 13 I don’t know if you know that is but basically you lay flat on your back with your knees up in the air and you basically lift your back 14 up off the bed. And that is basically the extent of the stretching I have to do before I can get out of bed. And that usually requires a 15 pain pill to even start that. So I—I’m not sure exactly how my heart plays into all of that or if it’s a factor at all but it's something 16 I deal with every day.
17 ATTORNEY: Thank you, Shawn. You mentioned being constantly tired, do you nap? Do you take naps sometimes, once a 18 week, once a day, or not at all?
19 PLAINTIFF: Well, to be honest I actually do nap probably twice a day. I don’t sleep well at night. I wake up with neck pain, back 20 pain. My right arm cramps due to the stenosis in my neck and it just randomly cramps. If I try to wash my hair daily I get two 21 minutes with my right hand to lather and rinse and my arm’s done for an hour. And I have cream I have to use on my arm to relieve 22 that pain.
23 ATTORNEY: . . . you mentioned taking two naps a day, how long do those naps last.? 24 PLAINTIFF: Generally about an hour to an hour and a half. It’s 25 usually right after I take my medication I get some relief from the pain and I’ll sit on my heating pad for a little bit and I generally 26 fall asleep.
27 ATTORNEY: Thank you. And then moving back to what you’re describing, what’s going on with your right arm if you can describe 1 PLAINTIFF: Well, from what I understand it is from a stenosis in 2 my neck is a pinching on the spinal column and it causes nerve pain. My arm just will suddenly feel like it’s cramping up. Like 3 for instance I’ve thrown a nine inning baseball game and I have hardly used my arm. I mean if I write a sentence on a piece of 4 paper my arm cramps. It’s terrible.
5 ATTORNEY: Could you give us any more examples as to how your right arm limits your ability to do things in everyday life? 6 PLAINTIFF: It’s hard for – I – I’ve been dealing with it so long 7 that I don’t realize how I’m overcompensating at times. I have a hard time, you know, washing my hair as I said and typing, thing 8 of that nature. Even holding my phone up to my ear is stressful on my arm and hurts, so. 9 ATTORNEY: You mentioned COPD, Shawn, and that also may 10 contribute to your fatigue. What can you tell us about that, any other effects of COPD that limits your ability to function on an 11 everyday basis?
12 PLAINTIFF: Just shortness of breath. I lose my air quite easily and I – I can’t walk more than probably 100 yards without having 13 to stop and catch my breathe and that takes 30 or 40 sections and I can go another 100 yards. And then my legs are wore out, my 14 breathing is hard. I basically have to sit down then for ten or 15 minutes and – I – . . . it limits me from doing much shopping. 15 Grocery store is hard for me. I occasionally go but most of the time I will either stay in the vehicle or I will have to get a cart if 16 there’s one available while I’m getting my shopping. And as far as everyday things go that’s probably how it affects me the most. 17 ATTORNEY: Are you able to walk without assistance or you use a 18 walker, a cane, or any assistive device?
19 PLAINTIFF: I do use a cane. I don’t use it 100% of the time but most generally I use it to upkeep my balance. I ‘ve always had 20 balance issues all my life, that’s nothing new for me, but my legs get weak and I do need something to lean on so I do carry the cane 21 with me most of the time.
22 ATTORNEY: Why do your legs get weak? If you know, what the doctors are telling you is going on with your legs? 23 PLAINTIFF: Okay. Well, that was the original reason I started 24 seeing the doctor was because I was having leg problems. And we finally figured out that it was because of my lower back was 25 pinching something and deteriorated somehow as to where my legs weren’t functioning properly. Once I started dealing with my back 26 my legs got better but not completely better. And so the legs have been an issue from the start of this but it was – it’s due to my back 27 that my legs were not functioning properly. 1 ATTORNEY: Why don’t you drive? 2 PLAINTIFF: I have no restrictions from having a driver’s license. 3 I occasionally will have dizzy spells and I have a problem telling the colors and the lights. My eyes are getting bad to where the 4 color recognition is not as sharp as it used to be and it scares me.
5 ATTORNEY: How often do you get these dizzy spells you mentioned? 6 PLAINTIFF: They are not frequent but maybe once very four or 7 five months and there’s no rhyme or reason.
8 (AR 75-80.) 9 Though Plaintiff testified to a mix of subjective complaints about symptoms and ADLs, 10 the Court nonetheless finds that the ALJ adequately addressed the testimony she found to be 11 either partially or completely incredible. Again, an ALJ need only identify and explain 12 testimony the ALJ rejects in whole or in part. Lambert, 980 F.3d at 1277 (“[T]he ALJ may reject 13 the claimant’s testimony about the severity of those symptoms only by providing specific, clear, 14 and convincing reasons for doing so.”) For example, Plaintiff contends the ALJ did not address 15 Plaintiff’s issue with handling and fingering due to surgical reconnection of left ring finger and 16 loss of significant use of it. However, this is belied by the RFC, which incorporates this 17 limitation insofar as “[Plaintiff] should avoid jobs that require typing or where the use of the 18 third finger on the left non-dominant hand would be necessary. The loss of use of the left non- 19 dominant third finger would not impact handling and fingering except in instances where the 20 third finger of the left non-dominant hand was necessary as in typing.” (AR 25.) The Court 21 finds this limitation congruent with Plaintiff’s testimony at the hearing. Another example is 22 Plaintiff’s contention that the ALJ did not address his shortness of breath; however, the ALJ 23 specifically discounted, in part, Plaintiff’s testimony, finding that “cardio findings were stable,” 24 and citing to exhibits. (AR 29.) Moreover, the RFC painstakingly addresses Plaintiff’s 25 requirements regarding standing/sitting, changing of physical positioning, as well as walking. 26 (AR 25.) The Court finds Plaintiff’s remaining contentions regarding Plaintiff’s subjective 27 testimony unpersuasive for the same or similar reasons. Relatedly, as explained above, the Court finds that the ALJ did identify the testimony she rejected in whole or in part from Plaintiff and 1 gave reasons for doing so. 2 Finally, Plaintiff misunderstands the import of Lambert with regard to boilerplate 3 statements regarding a plaintiff’s subjective testimony. In Lambert, the Ninth Circuit discussed the 4 boilerplate language ALJs use when finding that a “the claimant’s statements concerning the 5 intensity, persistence and limiting effects of [her] symptoms are not entirely consistent with the 6 objective medical and other evidence for the reasons explained in this decision.” 980 F.3d at 1277 7 (alteration in original). Yet, the evil the Ninth Circuit was discussing was not the use of this 8 phrase in and of itself but that such a high-level phrase was insufficient on its own to discount a 9 claimant’s subjective testimony. Indeed, the Lambert Court noted that this “‘boilerplate statement’ 10 by way of ‘introductory remark,’ . . . is ‘routinely include[d]’ in ALJ decisions denying benefits.” 11 Id., quoting Treichler, 775 F.3d at 1103. Yet, in Lambert, “the ALJ did not ‘identify what parts of 12 the claimant's testimony were not credible and why.” Id., quoting Treichler, 775 F.3d at 1103. 13 Therefore, Plaintiff’s observation that the ALJ used a substantially similar phrase here is of no 14 moment in light of the analysis above. 15 For the forgoing reasons, the Court finds that the ALJ did not err in its analysis of 16 Plaintiff’s testimony regarding subjective symptoms. 17 B. Activities of Daily Living 18 Plaintiff separately argues that the ALJ erred in relying on Plaintiff’s ADLs in 19 controverting Plaintiff’s subjective symptom testimony. (ECF No. 13, p. 9-10.) The Court is not 20 convinced. 21 Social Security Administration rulings specify the proper bases for rejection of a claimant’s 22 testimony. See S.S.R. 02-1p, available at Policy Interpretation Ruling Titles II and XVI: 23 Evaluation of Obesity, 67 Fed. Reg. 57,859-02 (Sept. 12, 2002); S.S.R. 96–7p (Cum. Ed.1996), 24 available at 61 Fed. Reg. 34,483-01 (July 2, 1996). “Factors that an ALJ may consider in 25 weighing a claimant’s credibility include reputation for truthfulness, inconsistencies in testimony 26 or between testimony and conduct, daily activities, and unexplained, or inadequately explained, 27 failure to seek treatment or follow a prescribed course of treatment.” Orn v. Astrue, 495 F.3d 625, 1 Regarding ADLs, “the mere fact that a plaintiff has carried on certain daily activities . . . 2 does not in any way detract from her credibility as to her overall disability.” Vertigan v. Halter, 3 260 F.3d 1044, 1050 (9th Cir.2001). Yet, in assessing a claimant’s subjective testimony, the “ALJ 4 may consider . . . ‘whether the claimant engages in daily activities inconsistent with the alleged 5 symptoms.’” Molina v. Astrue, 674 F.3d 1104, 1112, quoting Lingenfelter v. Astrue, 504 F.3d 6 1028, 1040 (9th Cir. 2007). In addition, “the ALJ may discredit a claimant’s testimony when the 7 claimant reports participation in everyday activities indicating capacities that are transferable to a 8 work setting.” Id. at1113, citing Morgan v. Comm’r Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 9 1999). “Even where those activities suggest some difficulty functioning, they may be grounds for 10 discrediting the claimant’s testimony to the extent that they contradict claims of a totally 11 debilitating impairment.” Id. 12 Here, as Plaintiff points out, the ALJ cited to Plaintiff’s own self-report that Plaintiff had 13 no problems with personal care, he could prepare meals, could do laundry, as well as yardwork 14 with no mowing. (AR 25, citing AR 295-96.) Plaintiff also reported that he walked daily, could 15 shop in stores for groceries, and could handle money. (AR 25, citing 297.) The Court finds that 16 these findings from the ALJ support the ALJ’s overall determination that Plaintiff was not 17 generally disabled. Molina, 674 F.3d at 1113. 18 Moreover, as quoted heavily above, the ALJ discussed at times Plaintiff’s testimony on his 19 subjective symptoms and then cited to ADLs as cutting against such symptoms. For example, 20 Plaintiff reported lower back pain, yet at the same time reported “adequate activity of daily living.” 21 (AR 27, citing Exhibit 5F, pp. 12-14, 16, 18.) Moreover, the ALJ did not rely on ADLs alone in 22 discrediting this part of Plaintiff’s testimony regarding his lower back pain. The ALJ also pointed 23 to physical examinations, other testing, and observation that Plaintiff had normal muscle strength 24 of the lower extremities. (AR 27.) 25 Beyond these observations, the ALJ either did not use ADLs to discredit parts of Plaintiff’s 26 testimony and, again, apparently incorporated some of these limitations into the RFC as well. For 27 example, Plaintiff takes issue with the fact that he testified that he could grocery shop but only 1 sit/stand option that allows changing position at least every 30 minutes. (AR 25.) Furthermore, 2 the RFC incorporates that Plaintiff can walk for one hour at a time before requiring a break, and in 3 total, Plaintiff cannot walk more than four hours in an eight-hour workday. (AR 25.) Thus, it 4 appears that the ALJ merely incorporated this ADL into the RFC, which therefore would not 5 require an adverse credibility determination. Though Plaintiff also testified at the hearing that he 6 could not walk farther than 200 yards without needing a 15-minute break, the ALJ specifically 7 found that Plaintiff’s cardio findings were stable, physical examinations showed Plaintiff’s gait 8 was normal, and Plaintiff did not require an assistive device to ambulate properly. (AR 29, citing 9 Exhibits 1F; 2F, p. 26; 5F, pp. 12-14, 16, 18; 6F, pp. 3-4, 8- 9, 13-14, 18-19; 9F, pp. 6-7; 10F, p. 10 10; 13F, pp, 3-8; 14F, p. 10; 15F, pp. 3-6.) Therefore, these contentions are of no merit. 11 Again, the in realm of reviewing an ALJ’s assessment of a plaintiff’s subjective testimony 12 regarding symptoms, “the standard isn’t whether [a] court is convinced, but instead whether the 13 ALJ’s rationale is clear enough that it has the power to convince.” Smartt, 53 F4th at 499. The 14 Court finds that the ALJ’s assessment was clear enough to have the power to convince. 15 Accordingly, the Court finds the ALJ did not err is her discussion of Plaintiff’s ADLs. 16 C. Incomplete Record 17 Plaintiff argues that the transcript of the proceeding is inadequate because at times there are 18 portions labeled as inaudible, citing to the Program Operations Manual System of the Hearings, 19 Appeals, and Litigation Law Manuel (“HALLEX”). (ECF No. 13-1, p. 11.) Upon review of the 20 record, the Court disagrees. 21 The agency has included deficiencies that would make a record incomplete: 22 If a record is not complete, it is not a “full and accurate” record of the proceedings relating to the litigated claim. When the record is 23 incomplete, the court legal assistant must modify the certification and footnote any missing materials on the index to the record as 24 well as in the record where the missing document or other material would have appeared. Such deficiencies may include: 25 missing exhibits pertaining to the current claim; 26 missing transcript(s) of oral hearing(s); 27 missing translation(s); and 1 “inaudible portions” noted in the transcript of oral hearing that are significant in length or are the result of equipment malfunction. 2 HA 01420.030 Certification of the Administrative Record. 3 As the Commissioner notes, the only applicable reasons here for finding that the record is 4 not ‘full and accurate’ would be that the text labeled as inaudible would be for a significant length 5 or the result of an equipment malfunction. (ECF No. 16, p. 14.) Here, Plaintiff has not argued that 6 the inaudible portions are from an equipment malfunction. (ECF No. 13-1, pp. 10-11.) Plaintiff 7 argues only that there are missing sections of audio that may involve Plaintiff’s subjective 8 testimony. 9 Tellingly, Plaintiff does not go into the length of these inaudible “sections,” which the 10 Court finds were essentially dropped words. For example, on AR 49 it is clear that Plaintiff, the 11 medical examiner, and the ALJ were talking over each other when Plaintiff was trying to answer 12 that he had a recent stress test done. Plaintiff stated, “Yeah, [inaudible].” But immediately 13 Plaintiff clarified, “I did have a nuclear stress test.” (AR 49.) On AR 52, there are three inaudible 14 portions of the medical examiner talking to the ALJ about where a report was in the record, which 15 was eventually located; this appears to be immaterial. Again, on AR 63, it appears Plaintiff was 16 interrupting his attorney, labeled as “inaudible,” but then immediately gave an answer to the 17 attorney’s final question. A similar issue occurred on AR 69. 18 The Court finds that the context of what was discussed in these portions made the inaudible 19 word either obvious or it was otherwise inessential to later testimony that clarified inaudible 20 words. Significantly, none of these dropped words went on for any extended length of time but 21 appear sporadically, as Plaintiff notes, twelve times. 22 Therefore, Plaintiff has not demonstrated that that record was incomplete. 23 D. The Dictionary of Occupational Titles 24 In an argument that boarders on conclusory, Plaintiff argues essentially that the DOT is 25 outdated regarding the actual jobs that exist in the current national economy. Beyond relying on 26 commonsense arguments, Plaintiff cites to only one real precedent in support of his position, 27 White v. Kijakazi, 44 F.4th 828 (9th Cir. 2022). Yet, Plaintiff did not even attack the national jobs 1 as the Ninth Circuit outlined an attorney might do at the appeal’s council review. Otherwise, the 2 only other argument the Court can discern from Plaintiff is that he is asking that the Court to 3 potentially enter the realms of the Legislative or Executive branches by either rewriting the DOT 4 or declaring it obsolete (without a justiciable hook). Of course, that is not the function of judicial 5 review. In any event, the Court will discuss Plaintiff’s precedent and argument. 6 In White, the plaintiff did not specifically object to the VE’s testimony regarding numbers 7 of jobs during the hearing before the ALJ. 44 F.4th at 832. Rather, the plaintiff asked the VE 8 about the source of the estimated jobs. Id. at 831. The plaintiff then submitted argument and 9 additional credible evidence to the Appeals Council concerning inconsistent job numbers. Id. at 10 832. Regarding preservation, the Ninth Circuit explained that “the Appeals Council is the final 11 level of SSA’s administrative review,” and the “SSA’s decision is not final until the Appeals 12 Council denies a request for review, or, if it accepts a case for review, until it issues its own 13 findings.” Id. at 835. The Court then noted that “SSA regulations permit a claimant to submit 14 additional evidence to the Appeals Council if the claimant shows good cause for not having 15 submitted it earlier.” Id. at 836-36, citing 20 C.F.R. § 404.970(b); Brewes v. Comm’r of Soc. Sec. 16 Admin., 682 F.3d 1157, 1162-63 (9th Cir. 2012). With that understanding, the Court reviewed the 17 plaintiff’s job numbers claim and ultimately reversed the district court’s grant of summary 18 judgment to the Commissioner based on the evidence offered. Id. at 837; see also Meanel v. 19 Apfel, 172 F.3d 1111, 1115 (9th Cir. 1999) (holding that a claimant’s failure to raise an issue “at 20 both her hearing before the ALJ and the Appeals Council” constitutes forfeiture). 21 In contrast (and not brought up by Plaintiff), the Ninth Circuit later discussed in 22 Wischmann v. Kijakazi, 68 F.4th 498 (9th Cir. 2023), evidence offered to the appeal’s council on 23 the issue of jobs in the economy that was not probative; this evidence was printouts that did not 24 indicate the process by which the data were generated or how the information on the pages 25 supported the attorney’s claim regarding job numbers in the national economy. Id. at 506-07. 26 Critically, Wischmann addressed the appropriate standard for when a claimant wishes to challenge 27 the numbers in the national economy regarding jobs in the DOT. “Although the agency has not 1 estimates and the claimant's job-number estimates, [the Ninth Circuit has] held that—as with any 2 other inconsistency in record evidence—the ALJ may have a duty to address such a conflict.” Id. 3 at 505, citing Buck v. Berryhill, 869 F.3d 1040, 1051-52 (9th Cir. 2017) (collecting cases); White, 4 44 F.4th at 836-37. That duty arises only “where the purportedly inconsistent evidence is both 5 significant and probative, as opposed to ‘meritless or immaterial.’” Id., quoting Kilpatrick v. 6 Kijakazi, 35 F.4th 1187, 1193-94 (9th Cir. 2022). After all, an ALJ “‘need not discuss all evidence 7 presented to her. Rather, [an ALJ] must explain why ‘significant probative evidence has been 8 rejected.’” Id., quoting Vincent ex rel. Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 9 1984). Thus, the Ninth Circuit clarified that, when federal courts “determine whether the ALJ had 10 a duty to address a conflict in job-number evidence (and failed to discharge that duty), [those 11 courts are to] consider on a case-by-case basis whether new evidence submitted by a claimant is 12 ‘meritless or immaterial’ or has ‘significant probative’ value.” Id. at 506. 13 Instead of attacking the numbers of actual jobs in the economy as outlined in White and 14 Wischmann, Plaintiff quotes that the Ninth Circuit recently lamented that “[w]e join our sister 15 circuits in encouraging the SSA to make the transition to a system that more accurately reflects 16 available jobs in the current economy.” White, 44 F.4th at 835. Yet, even White upheld the DOT, 17 underscoring for this Court that Plaintiff’s general claim that the DOT is obsolete to be without 18 force. 19 In sum, the ALJ did not err nor has Plaintiff demonstrated that reversal is appropriate. 20 IV. 21 CONCLUSION AND ORDER 22 Accordingly, IT IS HEREBY RECOMMENDED that the final decision of the 23 Commissioner of Social Security be AFFIRMED and judgment be entered in favor of Defendant 24 Commissioner of Social Security and against Plaintiff Shawn McKee. 25 These findings and recommendations are submitted to the district judge assigned to this 26 action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court’s Local Rule 304. Within fourteen 27 (14) days of service of this recommendation, any party may file written objections to these 1 | should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” The 2 | district judge will review the magistrate judge’s findings and recommendations pursuant to 28 3 | U.S.C. § 636(b)(1)(C). The parties are advised that failure to file objections within the specified 4 | time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th 5 | Cir. 2014), citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991). 6 7 IT IS SO ORDERED. FA. Be g | Dated: _ January 14, 2026 STANLEY A. BOONE 9 United States Magistrate Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28