1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 * * * 4 MICHAEL J. SMITH, Case No. 3:20-cv-00325-CLB 5 Plaintiff, ORDER DENYING MOTION TO REMAND AND GRANTING CROSS- 6 v. MOTION TO AFFIRM
7 KILOLO KIJAKAZI,1 [ECF Nos. 19, 20] Acting Commissioner of Social Security, 8 9 Defendant. 10 This case involves the judicial review of an administrative action by the 11 Commissioner of Social Security (“Commissioner”) denying Michael J. Smith’s (“Smith”) 12 application for disability insurance benefits and supplemental security income pursuant to 13 Titles II and XVI of the Social Security Act. Currently pending before the Court is Smith’s 14 motion for reversal and/or remand, (ECF No. 19), and the Commissioner’s cross-motion 15 to affirm and opposition, (ECF No. 20). Having reviewed the pleadings, transcripts, and 16 the Administrative Record (“AR”), (ECF No. 15), the Court concludes that the 17 Commissioner’s finding that Smith could perform other work that exists in significant 18 numbers in the national economy was supported by substantial evidence. Therefore, the 19 Court denies Smith’s motion for remand, (ECF No. 19), and grants the Commissioner’s 20 cross-motion to affirm, (ECF No. 20). 21 I. STANDARDS OF REVIEW 22 A. Judicial Standard of Review 23 This court’s review of administrative decisions in social security disability benefits 24 cases is governed by 42 U.S.C. § 405(g). See Akopyan v. Barnhart, 296 F.3d 852, 854 25 (9th Cir. 2002). Section 405(g) provides that “[a]ny individual, after any final decision of 26 27 1 Kilolo Kijakazi is now the Acting Commissioner of Social Security and is automatically substituted as a party pursuant to Fed. R. Civ. P. 25(d). 28 1 the Commissioner of Social Security made after a hearing to which he was a party, 2 irrespective of the amount in controversy, may obtain a review of such decision by a civil 3 action . . . brought in the district court of the United States for the judicial district in which 4 the plaintiff resides.” The court may enter, “upon the pleadings and transcript of the record, 5 a judgment affirming, modifying, or reversing the decision of the Commissioner of Social 6 Security, with or without remanding the cause for a rehearing.” Id. 7 The court must affirm an Administrative Law Judge’s (“ALJ”) determination if it is 8 based on proper legal standards and the findings are supported by substantial evidence 9 in the record. Stout v. Comm’r Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 2006); see 10 also 42 U.S.C. § 405(g) (“findings of the Commissioner of Social Security as to any fact, 11 if supported by substantial evidence, shall be conclusive”). “Substantial evidence is more 12 than a mere scintilla but less than a preponderance.” Bayliss v. Barnhart, 427 F.3d 1211, 13 1214 n.1 (9th Cir. 2005) (internal quotation marks and citation omitted). “It means such 14 relevant evidence as a reasonable mind might accept as adequate to support a 15 conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated 16 Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); see also Webb v. Barnhart, 433 F.3d 17 683, 686 (9th Cir. 2005). 18 To determine whether substantial evidence exists, the court must look at the 19 administrative record as a whole, weighing both the evidence that supports and 20 undermines the ALJ’s decision. Orteza v. Shalala, 50 F.3d 748, 749 (9th Cir. 1995) 21 (citation omitted). Under the substantial evidence test, a court must uphold the 22 Commissioner’s findings if they are supported by inferences reasonably drawn from the 23 record. Batson v. Comm’r, Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). 24 “However, if evidence is susceptible of more than one rational interpretation, the decision 25 of the ALJ must be upheld.” Orteza, 50 F.3d at 749 (citation omitted). The ALJ alone is 26 responsible for determining credibility and for resolving ambiguities. Meanel v. Apfel, 172 27 F.3d 1111, 1113 (9th Cir. 1999). 28 It is incumbent on the ALJ to make specific findings so that the court does not 1 speculate as to the basis of the findings when determining if substantial evidence supports 2 the Commissioner’s decision. The ALJ’s findings should be as comprehensive and 3 analytical as feasible and, where appropriate, should include a statement of subordinate 4 factual foundations on which the ultimate factual conclusions are based, so that a 5 reviewing court may know the basis for the decision. See Gonzalez v. Sullivan, 914 F.2d 6 1197, 1200 (9th Cir. 1990). 7 B. Standards Applicable to Disability Evaluation Process 8 The individual seeking disability benefits bears the initial burden of proving 9 disability. Roberts v. Shalala, 66 F.3d 179, 182 (9th Cir. 1995). To meet this burden, the 10 individual must demonstrate the “inability to engage in any substantial gainful activity by 11 reason of any medically determinable physical or mental impairment which can be 12 expected . . . to last for a continuous period of not less than 12 months.” 42 U.S.C. § 13 423(d)(1)(A). More specifically, the individual must provide “specific medical evidence” in 14 support of their claim for disability. See 20 C.F.R. § 404.1514. If the individual establishes 15 an inability to perform their prior work, then the burden shifts to the Commissioner to show 16 that the individual can perform other substantial gainful work that exists in the national 17 economy. Reddick v. Chater, 157 F.3d 715, 721 (9th Cir. 1998). 18 The first step requires the ALJ to determine whether the individual is currently 19 engaging in substantial gainful activity (“SGA”). 20 C.F.R. §§ 404.1520(b), 416.920(b). 20 SGA is defined as work activity that is both substantial and gainful; it involves doing 21 significant physical or mental activities, usually for pay or profit. 20 C.F.R. §§ 404.1572(a)- 22 (b), 416.972(a)-(b). If the individual is currently engaging in SGA, then a finding of not 23 disabled is made. If the individual is not engaging in SGA, then the analysis proceeds to 24 the second step. 25 The second step addresses whether the individual has a medically determinable 26 impairment that is severe or a combination of impairments that significantly limits the 27 individual from performing basic work activities. 20 C.F.R. §§ 404.1520(c), 416.920(c). An 28 impairment or combination of impairments is not severe when medical and other evidence 1 establish only a slight abnormality or a combination of slight abnormalities that would have 2 no more than a minimal effect on the individual’s ability to work. 20 C.F.R. §§ 404.1521, 3 416.921; Social Security Rulings (“SSRs”) 85-28 and 96-3p. If the individual does not have 4 a severe medically determinable impairment or combination of impairments, then a finding 5 of not disabled is made. If the individual has a severe medically determinable impairment 6 or combination of impairments, then the analysis proceeds to the third step. 7 The third step requires the ALJ to determine whether the individual’s impairment or 8 combination of impairments meets or medically equals the criteria of an impairment listed 9 in 20 C.F.R. Part 404, Subpart P, Appendix 1. 20 C.F.R. §§ 404.1520(d), 404.1525, 10 404.1526, 416.920(d), 416.925, 416.926. If the individual’s impairment or combination of 11 impairments meets or equals the criteria of a listing and meets the duration requirement 12 (20 C.F.R. §§ 404.1509, 416.909), then a finding of disabled is made. 20 C.F.R. §§ 13 404.1520(h), 416.920(h). If the individual’s impairment or combination of impairments 14 does not meet or equal the criteria of a listing or meet the duration requirement, then the 15 analysis proceeds to the next step. 16 Prior to considering step four, the ALJ must first determine the individual’s residual 17 functional capacity (“RFC”). 20 C.F.R. §§ 404.1520(e), 416.920(e). The RFC is a function- 18 by-function assessment of the individual’s ability to do physical and mental work-related 19 activities on a sustained basis despite limitations from impairments. SSR 96-8p. In making 20 this finding, the ALJ must consider all of the symptoms, including pain, and the extent to 21 which the symptoms can reasonably be accepted as consistent with the objective medical 22 evidence and other evidence. 20 C.F.R. §§ 404.1529 and 416.929; SSRs 96-4p, 96-7p. 23 To the extent that objective medical evidence does not substantiate statements about the 24 intensity, persistence, or functionally-limiting effects of pain or other symptoms, the ALJ 25 must make a finding on the credibility of the individual’s statements based on a 26 consideration of the entire case record. The ALJ must also consider opinion evidence in 27 accordance with the requirements of 20 C.F.R. §§ 404.1527 and 416.927 and SSRs 96- 28 2p, 96-5p, 96-6p, and 06-3p. 1 After making the RFC determination, the ALJ must then turn to step four to 2 determine whether the individual has the RFC to perform their past relevant work. 20 3 C.F.R. §§ 404.1520(f), 416.920(f). Past relevant work means work performed either as the 4 individual actually performed it or as it is generally performed in the national economy 5 within the last 15 years or 15 years prior to the date that disability must be established. In 6 addition, the work must have lasted long enough for the individual to learn the job and 7 performed at SGA. 20 C.F.R. §§ 404.1560(b), 404.1565, 416.960(b), 416.965. If the 8 individual has the RFC to perform their past work, then a finding of not disabled is made. 9 If the individual is unable to perform any past relevant work or does not have any past 10 relevant work, then the analysis proceeds to the fifth and final step. 11 The fifth and final step requires the ALJ to determine whether the individual is able 12 to do any other work considering their RFC, age, education, and work experience. 20 13 C.F.R. §§ 404.1520(g), 416.920(g). If the individual is able to do other work, then a finding 14 of not disabled is made. Although the individual generally continues to bear the burden of 15 proving disability at this step, a limited evidentiary burden shifts to the Commissioner. The 16 Commissioner is responsible for providing evidence that demonstrates that other work 17 exists in significant numbers in the national economy that the individual can do. Lockwood 18 v. Comm’r, Soc. Sec. Admin., 616 F.3d 1068, 1071 (9th Cir. 2010). 19 II. CASE BACKGROUND 20 A. Procedural History 21 Smith applied for disability insurance benefits (“DIB”) and supplemental security 22 income (“SSI”) on October 20, 2016, and October 27, 2016, respectively, with an alleged 23 disability onset date of October 1, 2016. (AR 274-281.) Smith’s application was denied 24 initially on February 17, 2017, and upon reconsideration on July 3, 2017. (AR 189-94, 197- 25 207.) Smith subsequently requested an administrative hearing. (AR 208-209.) 26 On December 6, 2018, Smith and his attorney appeared at an in-person hearing 27 before an ALJ. (AR 71-108.) An impartial vocational expert (“VE”) and an impartial medical 28 expert also appeared at the hearing by telephone. (Id.) The ALJ issued a written decision 1 on March 22, 2019, finding that Smith was not disabled because he could perform other 2 work that exists in significant numbers in the national economy. (AR 25-38.) Smith 3 appealed, and the Appeals Council denied review on April 2, 2020. (AR 1-6.) Accordingly, 4 the ALJ’s decision became the final decision of the Commissioner. Having exhausted all 5 administrative remedies, Smith filed a complaint for judicial review on June 2, 2020. (ECF 6 Nos. 1-1, 5.) 7 B. ALJ’s Decision 8 In the written decision, the ALJ followed the five-step sequential evaluation process 9 set forth in 20 C.F.R. §§ 404.1520 and 416.920. (AR 25-38.) Ultimately, the ALJ disagreed 10 that Smith has been disabled from October 1, 2016, the alleged onset date, through the 11 date of the decision. (AR 37.) The ALJ held, based on Smith’s age, education, work 12 experience, and RFC, that Smith could perform other work that exists in significant 13 numbers in the national economy. (Id.) 14 In making this determination, the ALJ first determined that Smith meets the insured 15 status requirements of the Social Security Act through December 31, 2018. (AR 29.) The 16 ALJ then went to step one of the five-step sequential evaluation, where the ALJ found 17 Smith had not engaged in substantial gainful activity since the alleged onset date of 18 October 1, 2016. (Id.) At step two, the ALJ found Smith had the following severe 19 impairments: vision loss, dysfunction major joints and osteoarthritis – bilateral feet, 20 Achilles’ tendinosis (left foot), bilateral knees with meniscus tear, degenerative disc 21 disease, thoracic spine, multiple lipomas and open wound. (AR 29-30.) At step three, the 22 ALJ found Smith did not have an impairment or combination of impairments that either 23 met or medically equaled the severity of those impairments listed in 20 C.F.R. Part 404, 24 Subpart P, Appx. 1; 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925, 25 and 416.926. (AR 30-31.) 26 Next, the ALJ determined Smith has the RFC to perform light work as defined by 27 20 C.F.R. §§ 404.1567(b) and 416.967(b) except: 28 [Smith] is able to occasionally climb stairs and ramps but never able to climb 1 ladders or scaffolds. He can occasionally balance, stoop, kneel, crouch, and crawl. [Smith] would need to avoid concentrated exposure to extreme cold, 2 and moving dangerous machinery, and avoid all exposure to unprotected heights. He should never drive a commercial vehicle. 3 4 (AR 31-36.) 5 The ALJ found Smith’s medically determinable impairments could reasonably be 6 expected to cause some of the symptoms alleged; however, Smith’s statements 7 concerning the intensity, persistence, and limiting effects of those symptoms were not 8 entirely consistent with the medical evidence and other evidence in the record. (AR 33.) 9 In reaching this conclusion, the ALJ reviewed and discussed the objective medical 10 evidence, Smith’s treatment history, and Smith’s demonstrated abilities and reported 11 activities. (AR 31-36.) The ALJ then determined that Smith is not capable of performing 12 any past relevant work as actually or generally performed. (AR 36.) 13 Relying on the testimony of the VE, the ALJ determined that Smith’s age, education, 14 work experience, and RFC would allow her to perform other occupations existing in 15 significant numbers in the national economy, such as: pantry good maker, short order 16 cook, or caterer helper. (AR 37.) Accordingly, the ALJ held that Smith had not been under 17 a disability since the alleged onset date of October 1, 2016, through the date of the 18 decision, and denied Smith’s claim. (AR 37.) 19 III. ISSUE 20 Smith seeks judicial review of the Commissioner’s final decision denying DIB and 21 SSI under Titles II and XVI of the Social Security Act. (ECF No. 19.) Smith raises a single 22 issue for this Court’s review: whether the ALJ properly rejected Smith’s testimony 23 concerning pain, symptoms, and level of limitation. (Id. at 6-14.) 24 IV. DISCUSSION 25 A. The ALJ articulated clear and convincing reasons for rejecting Smith’s subjective testimony. 26 Smith argues that it is unclear how the medical evidence is inconsistent with Smith’s 27 testimony as the ALJ’s recitation of the medical evidence fails to accurately portray Smith’s 28 1 overall health, conservative treatment was an insufficient reason for rejecting Smith’s 2 testimony, and the ALJ improperly rejected Smith’s testimony based on activities of daily 3 living. (ECF No. 19 at 6-14.) 4 By contrast, the Commissioner argues that the ALJ provided multiple valid reasons 5 for discounting Smith’s testimony, namely that: (1) certain objective medical findings did 6 not support the extent of his allegations; (2) Smith alleged disabling back pain, but denied 7 back pain to his providers; (3) the conservative nature of his treatment was inconsistent 8 with the extent of his alleged limitations; and (4) Smith’s activities illustrated that he had 9 greater functional abilities than alleged. (ECF No. 20 at 6-15.) 10 An ALJ engages in a two-step analysis to determine whether a claimant’s testimony 11 regarding subjective pain or symptoms is credible. “First, the ALJ must determine whether 12 there is objective medical evidence of an underlying impairment which could reasonably 13 be expected to produce the pain or other symptoms alleged.” Molina v. Astrue, 674 F.3d 14 1104, 1112 (9th Cir. 2012) (internal quotation marks omitted). “The claimant is not required 15 to show that her impairment could reasonably be expected to cause the severity of the 16 symptom she has alleged; she need only show that it could reasonably have caused some 17 degree of the symptom.” Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009) (internal 18 quotation marks omitted). 19 Second, “[i]f the claimant meets the first test and there is no evidence of 20 malingering, the ALJ can only reject the claimant’s testimony about the severity of the 21 symptoms if [the ALJ] gives ‘specific, clear and convincing reasons’ for the rejection.” 22 Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (quoting Lingenfelter v. Astrue, 504 23 F.3d 1028, 1036 (9th Cir. 2007)). “General findings are insufficient; rather, the ALJ must 24 identify what testimony is not credible and what evidence undermines the claimant’s 25 complaints.” Id. (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995)); Thomas v. 26 Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) (“[T]he ALJ must make a credibility 27 determination with findings sufficiently specific to permit the court to conclude that the ALJ 28 did not arbitrarily discredit claimant’s testimony.”). 1 In making an adverse credibility determination, the ALJ may consider, inter alia, (1) 2 the claimant’s reputation for truthfulness; (2) inconsistencies in the claimant’s testimony 3 or between his testimony and his conduct; (3) the claimant’s daily living activities; (4) the 4 claimant’s work record; and (5) testimony from physicians or third parties concerning the 5 nature, severity, and effect of the claimant’s condition. Thomas, 278 F.3d at 958-59. 6 A review of the record shows the ALJ provided specific, clear, and convincing 7 reasons for finding Smith’s statements concerning the intensity, persistence, and limiting 8 effects of his symptoms less than credible. 9 1. Objective Medical Evidence 10 Subjective testimony cannot be rejected solely because it is not corroborated by 11 objective medical findings, but medical evidence is a relevant factor in determining the 12 severity of a claimant’s impairments. Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 13 2001); see also Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005). 14 The ALJ relied on objective medical evidence that supports the RFC rather than 15 Smith’s allegations of pain. Although the ALJ cannot cherry pick objective medical 16 evidence from the record, they can consider contrary objective medical evidence in making 17 a credibility determination. Here, the ALJ provided a thorough summary of the medical 18 evidence in which he highlighted specific objective findings that support the assigned RFC. 19 (AR 31-36.) He also considered that Smith’s treatment modalities have been effective at 20 relieving his pain and other symptoms. (Id.) Further, the ALJ found that Smith’s treatment 21 was through conservative methods such as physical therapy and home exercise. (AR 22 753.) Thus, based on these findings, the ALJ assigned a reduced RFC with postural and 23 environmental limitations. Accordingly, the Court finds the ALJ provided clear and 24 convincing reasons for finding Smith not credible to the extent his testimony exceeds the 25 RFC. 26 /// 27 /// 28 /// 1 2. Conservative Treatment and Inconsistent Statements Regarding Back Pain 2 3 “Evidence of ‘conservative treatment’ is sufficient to discount a claimant’s testimony 4 regarding severity of an impairment.” Parra v. Astrue, 481 F.3d 742, 751 (9th Cir. 2007) 5 (citing Johnson v. Shalala, 60 F.3d 1428, 1434 (9th Cir. 1995) (conservative treatment 6 “suggest[s] a lower level of both pain and functional limitation.”)); see also Gutierrez v. 7 Commissioner of Social Sec. Admin., 671 Fed. Appx. 526 (9th Cir. 2016) (clear and 8 convincing reasons to discount claimant’s credibility included conservative treatment 9 involving physical therapy, weight loss, and medications). The ALJ can also infer that a 10 claimant’s symptoms are, “not as all-disabling as . . . reported.” Tommasetti v. Astrue, 533 11 F.3d 1035, 1039-40 (9th Cir. 2008) (finding a claimant’s favorable response to 12 conservative treatment undermined his “reports regarding the disabling nature of his 13 pain.”). However, “[a] claimant cannot be discredited for failing to pursue non-conservative 14 treatment options where none exists.” LaPeirre-Gutt v. Astrue, 382 Fed. Appx. 662, 664 15 (9th Cir. 2010). Conservative treatment “is not a proper basis for rejecting the claimant’s 16 credibility where the claimant has a good reason for not seeking more aggressive 17 treatment.” Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008) 18 (citing Orn v. Astrue, 495 F.3d 625, 638 (9th Cir. 2007)). 19 Smith argues that he did not receive conservative treatment because he was 20 approved for surgery, but it had not yet occurred, and thus, this an insufficient reason for 21 rejecting his testimony. (ECF No. 19 at 12.) The ALJ found that Smith had treated certain 22 pain symptoms, specifically back pain, with conservative measures such as physical 23 therapy, though “he was apparently discharged because of ineffectiveness.” (AR 33, 388, 24 391, 394-95, 664, 788, 792, 814.) The ALJ also noted, that despite Smith’s allegations of 25 “always” having back pain, Smith occasionally denied back pain to his providers. (AR 33, 26 382, 388, 456, 502, 517, 541, 555, 664.) Further, Smith was instructed as to other 27 conservative treatment, such as home exercises to help with his left Achilles’ tendinosis, 28 but “he did not do them because he alleged pain.” (AR 33, 599-603.) The ALJ 1 acknowledged that Smith’s providers had proposed surgeries, but still found that he 2 received conservative treatments, specifically as it related to his spine. 3 The ALJ’s reliance on the conservative treatment and inconsistent statements 4 regarding back pain are free of error. Hanes v. Colvin, 651 Fed.Appx. 703, 705 (9th Cir. 5 2016) (unpublished) (“the ALJ supported his conclusion with evidence of [claimant’s] 6 conservative treatment plan, which consisted primarily of minimal medication, limited 7 injections, physical therapy, and gentle exercise”) (citing Parra, 481 F.3d at 751); 8 Tommasetti, 533 F.3d at 1039 (The ALJ may consider “prior inconsistent statements 9 concerning the symptoms.”). 10 3. Smith’s Daily Activities 11 An ALJ may discredit a claimant’s testimony when he reports participation in 12 everyday activities indicating capacities that are transferable to a work setting. See Molina, 13 674 F.3d at 1112-13; 20 C.F.R. § 404.1529(c)(3)(i). Further, the inconsistency between a 14 claimant’s alleged symptoms and his daily activities, is sufficient to support a finding that 15 a plaintiff was not entirely credible. See Lingenfelter, 504 F.3d at 1040 (in determining 16 credibility, an ALJ may consider “whether claimant engaged in daily activities inconsistent 17 with alleged symptoms”). Specifically, daily activities may be grounds for discrediting a 18 claimant’s testimony when a claimant “is able to spend a substantial part of his day 19 engaged in pursuits involving the performance of physical functions that are transferrable 20 to a work setting.” Fair v. Brown, 885 F.2d 597, 603 (9th Cir. 1989). Even when such 21 activities suggest some difficulty functioning, the ALJ may discredit a claimant’s testimony 22 to the extent they contradict claims of a totally debilitating impairment. See Turner, 613 23 F.3d at 1225. 24 Here, the ALJ also found Smith less credible because the account of his daily 25 activities was inconsistent with his alleged limitations. (AR 33); see Tommasetti, 533 F.3d 26 at 1039 (inconsistency between a claimant’s alleged symptoms and his daily activities may 27 be a clear and convincing reason to find a claimant less credible). Smith testified that he 28 has trouble walking without bumping into objects due to his vision problems, that he can 1 generally walk for 5-10 minutes, stand for 60 minutes, sit for 60 minutes, lift and carry 20 2 pounds, and climb stairs to his second-floor apartment. (AR 32, 81-92.) He testified that 3 he sometimes uses knee braces to help him walk, but he did not wear braces to the 4 hearing as the braces make his ankles and legs swell. (Id.) He further testified that he still 5 cooks at home but is reluctant to use knives. (Id.) Additionally, Smith reports that he can 6 take care of his personal hygiene, do dishes, take out the trash, go grocery shopping, and 7 drive. (AR 33, 81-92.) Based on these, and other findings, the ALJ determined Smith’s 8 subjective symptom testimony was inconsistent with his alleged impairments. (AR 31-36.) 9 Based on the above, the Court finds the ALJ provided “specific, clear and 10 convincing” reasons supported by substantial evidence for discounting Smith’s credibility 11 as to his subjective limitations. See Fair, 885 F.2d at 604 (“Where, as here, the ALJ has 12 made specific findings justifying a decision to disbelieve an allegation of excess pain, and 13 those findings are supported by substantial evidence in the record, our role is not to 14 second-guess that decision.”). 15 V. CONCLUSION 16 Having reviewed the Administrative Record as a whole and weighing the evidence 17 that supports and detracts from the Commissioner’s conclusion, the Court finds that the 18 ALJ’s decision was supported by substantial evidence. 19 Accordingly, IT IS THEREFORE ORDERED that Smith’s motion to remand (ECF 20 No. 19) is DENIED, and the Commissioner’s cross-motion to affirm (ECF No. 20) is 21 GRANTED; 22 IT IS FURTHER ORDERED that the Clerk ENTER JUDGMENT and CLOSE THIS 23 CASE. 24 DATED: _F_e_b_r_u_a_ry_ _3_, _2_0_2_2____. 25 ______________________________________ 26 UNITED STATES MAGISTRATE JUDGE 27 28