Ogannesyan v. Colvin

Full title: ARTAVAZD OGANNESYAN, Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner…

Court: UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

Date published: May 23, 2016

Case No. CV 15-0220-JPR (C.D. Cal. May. 23, 2016)

Opinion

Case No. CV 15-0220-JPR

05-23-2016

ARTAVAZD OGANNESYAN, Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

JEAN ROSENBLUTH U.S. Magistrate Judge

MEMORANDUM OPINION AND ORDER AFFIRMING COMMISSIONER

I. PROCEEDINGS

Plaintiff seeks review of the Commissioner's final decision terminating payment of Supplemental Security Income ("SSI") benefits. The parties consented to the jurisdiction of the undersigned U.S. Magistrate Judge under 28 U.S.C. § 636(c). The matter is before the Court on the parties' Joint Stipulation, filed November 13, 2015, which the Court has taken under submission without oral argument. For the reasons stated below, the Commissioner's decision is affirmed.

II. BACKGROUND

Plaintiff was born in Armenia in 1966 and moved to California in September 1989. (Administrative Record ("AR") 30, 147, 234.) He completed the eighth grade in Armenia¹ and has never worked. (AR 52, 56, 164.) In a determination dated January 29, 1993, he was found to have been disabled since June 11, 1992, because of posttraumatic stress disorder and back pain. (AR 23-24, 61, 63, 241.) In a determination dated August 21, 1996, his disability was found to continue. (AR 23-24.)

1 In 2011 and 2012, Plaintiff reported that he had completed the eighth grade (AR 56, 285), but in 1996, he reported that he had completed the 12th grade (AR 234).

On February 4, 2011, Plaintiff filed a disability report and a continuing-review disability report, alleging that he was unable to work because of back pain, right-leg pain, an eye injury, and anxiety. (AR 164, 187.) On July 22, 2011, Plaintiff was notified that his disability was found to have ended as of July 2011 and that his benefits would be terminated. (AR 65-67.) He requested reconsideration of the cessation determination and appeared with an interpreter at a hearing before a Disability Hearing Officer ("DHO") on January 11, 2012. (AR 64, 68, 80.) In a written decision issued the following day, the DHO found Plaintiff not disabled. (AR 80-89.)

Plaintiff requested a hearing before an Administrative Law Judge. (AR 93.) A hearing was held on November 27, 2012, at which Plaintiff appeared with a nonattorney representative and testified through an Armenian-language interpreter.² (AR 46, 49-57.) A vocational expert ("VE") also testified. (AR 57-59.) In a written decision issued November 29, 2012, the ALJ found that Plaintiff's disability had ended on July 1, 2011. (AR 23-32.) On November 13, 2014, after considering a new opinion from one of Plaintiff's treating physicians (AR 5, 351), the Appeals Council denied Plaintiff's request for review. (AR 1-5.) This action followed.

2 Although the Commissioner states that Plaintiff was represented by an attorney (see, e.g., J. Stip. at 7, 10), the ALJ stated that he was represented by a "non-attorney representative" (AR 23) and the representative's name does not appear on the California State Bar's website.

III. STANDARD OF REVIEW

Under 42 U.S.C. § 405(g), a district court may review the Commissioner's decision to deny benefits. The ALJ's findings and decision should be upheld if they are free of legal error and supported by substantial evidence based on the record as a whole. See id.; Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial evidence means such evidence as a reasonable person might accept as adequate to support a conclusion. Richardson, 402 U.S. at 401; Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). It is more than a scintilla but less than a preponderance. Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)). To determine whether substantial evidence supports a finding, the reviewing court "must review the administrative record as a whole, weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion." Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1996). "If the evidence can reasonably support either affirming or reversing," the reviewing court "may not substitute its judgment" for the Commissioner's. Id. at 720-21.

IV. THE EVALUATION OF DISABILITY

People are "disabled" for purposes of receiving Social Security benefits if they are unable to engage in any substantial gainful activity owing to a physical or mental impairment that is expected to result in death or has lasted, or is expected to last, for a continuous period of at least 12 months. 42 U.S.C. § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). Once they are found to be disabled, a "presumption of continuing disability arises in [their] favor," and the Commissioner "then bears the burden of producing evidence sufficient to rebut" it. Bellamy v. Sec'y of Health & Human Servs., 755 F.2d 1380, 1381 (9th Cir. 1985); see also McCalmon v. Astrue, 319 F. App'x 658, 659 (9th Cir. 2009).

Recipients of benefits are generally no longer disabled when substantial evidence demonstrates medical improvement in their physical and mental impairments and an ability to engage in substantial gainful activity. 42 U.S.C. § 423(f); Flaten v. Sec'y of Health & Human Servs., 44 F.3d 1453, 1460 (9th Cir. 1995).

A. The Seven-Step Evaluation Process

The ALJ follows a seven-step sequential evaluation process to assess whether a recipient continues to be disabled and eligible for SSI benefits. 20 C.F.R. § 416.994; see Khampunbuan v. Astrue, 333 F. App'x 217, 218 (9th Cir. 2009); Ferguson v. Comm'r of Soc. Sec., No. 2:13-CV-2344-WBS-CMK, 2015 WL 5173952, at *1 n.2 (E.D. Cal. Sept. 2, 2015). In the first step, the Commissioner determines whether the recipient has an impairment or combination of impairments that meets or equals an impairment in the Listing of Impairments ("Listing") set forth at 20 C.F.R. part 404, subpart P, appendix 1; if so, the disability continues. § 416.994(b)(5)(i).

If the recipient's impairment or combination of impairments does not meet or equal an impairment in the Listing, the second step requires the Commissioner to determine whether medical improvement has occurred.³ § 416.994(b)(5)(ii). If so, the analysis proceeds to step three; if not, it proceeds to step four. Id.

3 Medical improvement is "any decrease in the medical severity of [a recipient's] impairment(s) which was present at the time of the most recent favorable medical decision that [the recipient was] disabled or continued to be disabled." § 416.994(b)(1)(i). "A determination that there has been a decrease in medical severity must be based on changes (improvement) in the symptoms, signs and/or laboratory findings associated with [the recipient's] impairment(s)." Id. (citing § 416.928).

If medical improvement has occurred, the third step requires the Commissioner to determine whether the improvement is related to the recipient's ability to work — that is, whether the recipient's residual functional capacity ("RFC")⁴ has increased since the most recent favorable medical decision. § 416.994(b)(5)(iii). If medical improvement is not related to the recipient's ability to work, the analysis proceeds to step four; if it is, it proceeds to step five. Id.

4 RFC is what a claimant can do despite existing exertional and nonexertional limitations. § 416.945; see Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989).

If medical improvement has not occurred or if it is not related to the recipient's ability to work, the fourth step requires the Commissioner to determine whether an exception applies. § 416.994(b)(5)(iv). Under the first group of exceptions, the Commissioner can find a recipient no longer disabled even though he has not medically improved if he is able to engage in substantial gainful activity; if one of these exceptions applies, the analysis proceeds to step five.⁵ § 416.994(b)(3), (b)(5)(iv). Under the second group of exceptions, the Commissioner can in certain situations find a recipient no longer disabled without finding medical improvement or an ability to engage in substantial gainful activity; if one of these exceptions applies, the recipient is no longer disabled.⁶ § 416.994(b)(4), (b)(5)(iv). If none of the exceptions apply, the recipient continues to be disabled. § 416.994(b)(5)(iv).

5 The first group of exceptions includes situations in which the recipient has undergone vocational therapy that improved his ability to perform jobs, new diagnostic techniques show that his impairments are not as disabling as previously thought, or the prior disability decision was erroneous. § 416.994(b)(3).

6 The second group of exceptions includes situations in which a prior determination was fraudulently obtained, the recipient doesn't cooperate with the agency, the agency can't find the recipient, or the recipient fails to follow prescribed treatment that would restore his ability to work. § 416.994(b)(4).

The fifth step requires the Commissioner to determine whether all the recipient's current impairments in combination are "severe," which means that they significantly limit his ability to do basic work activities; if not, the recipient is no longer disabled. § 416.994(b)(5)(v).

If the recipient's current impairments in combination are severe, the sixth step requires the Commissioner to determine whether the recipient has sufficient RFC, "based on all [his] current impairments," to perform his past relevant work; if so, he is no longer disabled. § 416.994(b)(5)(vi).

If the recipient is unable to do his past work or if he has none, the seventh and final step requires the Commissioner to determine, using the RFC assessed in step six, whether the recipient can perform any other substantial gainful work; if so, he is no longer disabled. § 416.994(b)(5)(vii). If not, the recipient continues to be disabled. Id.

B. The ALJ's Decision and Application of the Seven-Step Process

The ALJ found that as of August 21, 1996, the date of Plaintiff's most recent favorable medical decision, he had the medically determinable impairments of posttraumatic stress disorder and "back pain status post surgery," which had resulted in an RFC to perform light work with "moderate to severe psychosocial stressors."⁷ (AR 24-25.) She found that as of July 1, 2011, Plaintiff had the medically determinable impairments of "mild degenerative disc disease of the lumbar spine/lumbar spondylosis and obesity." (AR 25.) She also noted Plaintiff's hypertension and alleged mental impairments but found them not severe. (Id.)

7 The most recent favorable medical decision is also known as the comparison-point decision. See Program Operations Manual System (POMS) DI 28010.105, U.S. Soc. Sec. Admin. (June 22, 2015), http://policy.ssa.gov/poms.nsf/lnx/0428010105 (last updated Jan. 13, 2016); see also § 416.994(b)(1)(vii).

At step one of the seven-step process, the ALJ found that since July 1, 2011, Plaintiff's impairments had not met or equaled an impairment in Listing. (AR 25.) At step two, she found that medical improvement had occurred as of July 1, 2011. (AR 25-30.) At step three, she found that Plaintiff's medical improvement was related to his ability to work. (AR 30.) She therefore did not address step four. See § 416.994(b)(5)(iv). At step five, she concluded that since July 1, 2011, Plaintiff's impairments had "continued to be severe." (AR 30; see also AR 25.) At step six, she found that beginning on July 1, 2011, Plaintiff had the RFC to perform medium work "except he can: frequently bend, stoop and twist." (AR 26.) She further found that he did not have any past relevant work. (AR 30.) At step seven, based on the VE's testimony, the ALJ concluded that beginning on July 1, 2011, Plaintiff could perform jobs existing in significant numbers in the national economy. (AR 30-31.) Accordingly, she determined that his disability ended on July 1, 2011. (AR 31-32.)

V. DISCUSSION

Plaintiff raises eight separate issues, arguing that the ALJ erred in (1) admitting into evidence an investigation report by the Cooperative Disability Investigation ("CDI") unit,⁸ (2) considering the "opinion of lay investigators" over Plaintiff's testimony and the opinions of his treating doctors, Michael Karapetian and Tigran I. Gervorkian, (3) relying on Plaintiff's household activities to find him not credible, (4) rejecting Dr. Karapetian's opinion based on the opinions of nontreating doctors, (5) mischaracterizing Drs. Karapetian's and Gervorkian's reports, (6) discounting Plaintiff's credibility, (7) mischaracterizing Plaintiff's testimony, and (8) relying on the VE's testimony to find that Plaintiff could perform other work. (J. Stip. at 4, 12, 20, 27, 30-32.) In essence, therefore, Plaintiff challenges the ALJ's (1) admission of the CDI report, (2) weighing of the medical-opinion evidence, (3) credibility assessment, and (4) reliance on the VE's testimony. Each of those four issues is discussed below.

8 The Social Security Administration and the SSA's Office of the Inspector General established the CDI program to investigate suspected fraud in disability claims. See Cooperative Disability Investigations (CDI), Office of the Inspector General, https://oig.ssa.gov/cooperative-disability-investigations-cdi (last accessed May 12, 2016).

A. The ALJ Did Not Err in Admitting the CDI Report

Plaintiff argues that the ALJ "erroneously admitted" the CDI report and that he should have "had an opportunity to cross examine the investigators" who wrote the report, "especially concerning allegations suggesting malingering and fraud." (J. Stip. at 4-5.)

1. Relevant background

In November 2011, Plaintiff's case was referred to the CDI unit after it began investigating Plaintiff's wife, who was apparently also receiving disability benefits (AR 148, 151) and was suspected of malingering. (AR 241 (noting that "other members of the same family receiving disability benefits is indicative for possible high risk for fraud and similar fault").) In January 2011, CDI investigators Michael Lavoie and Gregory Godina visited Plaintiff's residence three times and interviewed him once. (AR 242-43.) On April 5, 2011, Special Agent Glenn Roberts, a CDI-unit team leader, submitted a report with the following investigation summary:

On January 5, 2011, [investigators] visited [Plaintiff's] residence . . . . To reach the apartment, one is required walking [sic] up approximately 25 steps of stairs because it does not have an elevator. [Investigator] Godina saw [Plaintiff] downstairs, sitting on a chair talking to an unknown male. . . .

On January 8, 2011, [investigators] visited [Plaintiff's] residence . . . . [They] identified themselves and appraised [sic] [Plaintiff] as to the purpose of the visit. He understood the purpose of the interview [and] agreed to answer my questions. . . .

[Plaintiff] stated the following about himself: He performs all his own hygiene and grooming. He is able to prepare meals and conduct household chores including cleaning without assistance. He is able to perform grocery shopping on a weekly basis. He is able to count money and make change. He uses a county debit card to buy food. He does not own a car and does not drive. He uses public transportation to get to the county welfare office. He walks approximately six city blocks with his

wife, two times a week to attend church. He stated he ran out of all his medications and did not have any empty containers to show the investigators.

During the course of the interview, [Investigator] Godina observed the following regarding [Plaintiff]: He was well groomed with acceptable hygiene. He was alert, oriented and focused. He was able to understand and answer questions. He was able to recall information. Without difficulty, he excused himself two times to attend to other matters and returned to resume the conversation where he stopped. He did not exhibit any unusual behaviors. He was able to remain seated with no signs of pain or discomfort. He was able to stand and walk without difficulty. His gait was normal. He did not use any assistive devices to stand or walk. He did not exhibit difficulty lifting and handling items. He did not present himself in a depressed or worried manner. He did not become agitated at any time during the interview. [Investigator] Godina further observed [Plaintiff] twice, ascend and descend two flights of stairs without the aid of handrails. He climbed the stairway at a moderate to fast pace without exhibiting any signs of pain, shortness of breath, or loss of balance.

Subsequently on January 11, 2011, [Investigator] Godina observed the following: [Plaintiff] walked to the apartment building, alone. He was walking unassisted and at a moderate pace. He then jogged crossing the street

and entered the apartment building. Upon reaching the apartment building, he walked up the stairs to the second floor towards . . . Godina at a rapid pace. When he reached . . . Godina's position, he was breathing normally and showed no signs of physical distress.

(AR 242-43.) The CDI report was made part of the administrative record (see AR 240-43) and the ALJ relied on it in finding Plaintiff no longer disabled (see AR 28-29).

2. Analysis

The ALJ permissibly admitted the CDI investigation report into evidence and relied on it in making her nondisability determination. Indeed, in a recent unpublished opinion, the Ninth Circuit found that an ALJ may rely on evidence related to CDI unit investigations because "[t]he Social Security Act expressly authorizes the Commissioner to 'conduct such investigations and other proceedings as the Commissioner may deem necessary or proper.'" Elmore v. Colvin, 617 F. App'x 755, 757 (9th Cir. 2015) (quoting 42 U.S.C. § 405(b)(1)). As the Ninth Circuit noted, "there is nothing nefarious about ensuring that only deserving claimants receive benefits." Id.

And although Plaintiff argues that the ALJ's consideration of the investigators' "unsworn" statements was erroneous, an ALJ in fact has an obligation to consider such third-party statements regarding a plaintiff's ability to work. See Molina v. Astrue, 674 F.3d 1104, 1114 (9th Cir. 2012) ("Lay testimony as to a claimant's symptoms or how an impairment affects the claimant's ability to work is competent evidence that the ALJ must take into account."); Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009) ("In determining whether a claimant is disabled, an ALJ must consider lay witness testimony concerning a claimant's ability to work." (citing Stout v. Comm'r, Soc. Sec. Admin., 454 F.3d 1050, 1053 (9th Cir. 2006))); see also § 416.913(d) (statements from "[o]ther non-medical sources," including spouses, parents, other relatives, friends, neighbors, and clergy, can be used to show severity of impairments and effect on ability to work); § 416.929(c)(3) (in evaluating symptoms, ALJ will consider "observations by our employees and other persons"); SSR 96-7p, 1996 WL 374186, at *8 (July 2, 1996) ("In evaluating the credibility of the individual's statements, the adjudicator must also consider any observations recorded by SSA personnel who previously interviewed the individual, whether in person or by telephone."). Moreover, as Plaintiff acknowledges (J. Stip. at 6), an ALJ may receive evidence at an administrative hearing even if it would be inadmissible under the rules of evidence applicable to court proceedings. See Richardson, 402 U.S. at 400 ("strict rules of evidence, applicable in the courtroom, are not to operate at social security hearings so as to bar the admission of evidence otherwise pertinent"); 42 U.S.C. § 405(b)(1) ("Evidence may be received at any hearing before the Commissioner of Social Security even though inadmissible under rules of evidence applicable to court procedure."); 20 C.F.R. § 416.1450(c) ("The administrative law judge may receive evidence at the hearing even though the evidence would not be admissible in court under the rules of evidence used by the court.").

Plaintiff nevertheless contends that the CDI report should not have been admitted because he "did not have the opportunity to cross examine the CDI investigators because the investigators did not appear at the hearing," and he was "not specifically informed that he had the right to subpoena" them. (J. Stip. at 5-6.) But the record shows that the agency provided Plaintiff with the full administrative record, which presumably included the CDI report (AR 94 (Apr. 2, 2012 letter stating that "[a] CD is enclosed that contains all of the evidence in your electronic folder to date"), 89 (hearing officer's Jan. 12, 2012 decision noting that evidence considered included "CDI")), and advised him on at least three separate occasions of his right to ask the ALJ to subpoena witnesses to testify at the hearing. (See AR 38 (Mar. 1, 2012 letter), 110 (Apr. 19, 2012 letter), 128-29 (Sept. 12, 2012 letter), 134-35 (same)); see also § 416.1450(d) (ALJ may "on his or her own initiative or at the request of a party, issue subpoenas for the appearance and testimony of witnesses"). Plaintiff cannot now complain that the investigators did not appear at the hearing when he never asked the ALJ to subpoena them. See Hubbard v. Barnhart, 225 F. App'x 721, 723 (9th Cir. 2007) (finding that detective's absence from hearing did not violate due process because plaintiff "failed to avail herself" of opportunity to request subpoena).⁹ And when the ALJ asked at the hearing whether Plaintiff had any objection to the documents in the record, which included the CDI report, Plaintiff's representative responded, "No, Your Honor." (AR 47.) Plaintiff, moreover, was given a chance to respond to the report's findings when the ALJ questioned him about them. (See AR 50-52.)

9 Plaintiff attempts to distinguish Hubbard by stating, with no further explanation, that the video at issue in that case was "properly authenticated." (J. Stip. at 10-11.) But the video was simply an exhibit to a detective's investigative report and nothing shows that the report was signed under penalty of perjury or that the video was otherwise verified. See Hubbard, 225 F. App'x at 723; see also (J. Stip. at 11 (arguing that CDI report in this case should have been signed under penalty of perjury or "properly authenticated" with "certification" "verifying that it was a true and correct copy of a document in the Commissioner's files").) In any event, the Ninth Circuit in Hubbard found that regardless of whether the video had a "proper foundation," it was properly admitted under 20 C.F.R. § 404.950(c), which states that an ALJ may receive evidence that would not be admissible in court. Id.; see also § 416.1450(c).

As such, nothing shows that the ALJ erred in considering the CDI report. See Darmaryan v. Colvin, No. 14-CV-03551 (VEB), 2016 WL 1698252, at *8 (C.D. Cal. Apr. 27, 2016) (noting that "courts have recognized that an ALJ may consider the findings of a fraud investigation performed by the CDI when assessing a claimant's credibility" and collecting cases); Manor v. Astrue, No. C10-5944-JLR, 2011 WL 3563687, at *5-6 (W.D. Wash. July 28, 2011) (finding ALJ's consideration of CDI report was not fundamentally unfair when plaintiff had opportunity to challenge it by objecting to its admission and requesting detectives' presence at hearing), accepted by 2011 WL 3567421 (W.D. Wash. Aug. 12, 2011). Remand is not warranted on this ground.

B. The ALJ Did Not Err in Assessing the Medical Opinions

Plaintiff argues that the ALJ erroneously discounted the opinions of her treating physicians, internist Dr. Karapetian and psychiatrist Dr. Gevorkian. (J. Stip. at 12-13, 18-20, 27-28, 30-32.) Dr. Karapetian's opinion postdated the ALJ's decision by seven months, but the Appeals Council considered it in denying review and ordered that it be made part of the administrative record. (See AR 1-5.)

1. Applicable law

Three types of physicians may offer opinions in Social Security cases: (1) those who directly treated the plaintiff, (2) those who examined but did not treat the plaintiff, and (3) those who did neither. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). A treating physician's opinion is generally entitled to more weight than an examining physician's, and an examining physician's opinion is generally entitled to more weight than a nonexamining physician's. Id.

This is true because treating physicians are employed to cure and have a greater opportunity to know and observe the claimant. Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996). If a treating physician's opinion is well supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in the record, it should be given controlling weight. § 416.927(c)(2). If a treating physician's opinion is not given controlling weight, its weight is determined by length of the treatment relationship, frequency of examination, nature and extent of the treatment relationship, amount of evidence supporting the opinion, consistency with the record as a whole, the doctor's area of specialization, and other factors. § 416.927(c)(2)-(6).

When a treating physician's opinion is not contradicted by other evidence in the record, it may be rejected only for "clear and convincing" reasons. See Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008) (citing Lester, 81 F.3d at 830-31). When it is contradicted, the ALJ must provide only "specific and legitimate reasons" for discounting it. Id. (citing Lester, 81 F.3d at 830-31). Furthermore, "[t]he ALJ need not accept the opinion of any physician, including a treating physician, if that opinion is brief, conclusory, and inadequately supported by clinical findings." Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002); accord Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004).

Social Security Administration regulations "permit claimants to submit new and material evidence to the Appeals Council and require the Council to consider that evidence in determining whether to review the ALJ's decision, so long as the evidence relates to the period on or before the ALJ's decision." Brewes v. Comm'r of Soc. Sec. Admin., 682 F.3d 1157, 1162 (9th Cir. 2012); see also § 416.1470(b). "[W]hen the Appeals Council considers new evidence in deciding whether to review a decision of the ALJ, that evidence becomes part of the administrative record, which the district court must consider when reviewing the Commissioner's final decision for substantial evidence." Brewes, 682 F.3d at 1163; accord Taylor v. Comm'r of Soc. Sec. Admin., 659 F.3d 1228, 1232 (9th Cir. 2011); see also Borrelli v. Comm'r of Soc. Sec., 570 F. App'x 651, 652 (9th Cir. 2014) (remand necessary when "reasonable possibility" exists that "the new evidence might change the outcome of the administrative hearing").

2. Relevant background

i. Examining Physician Concepcion A. Enriquez

In May 2011, Dr. Enriquez, who was "board eligible" in internal medicine, examined Plaintiff at the Social Security Administration's request. (AR 244-47.) Dr. Enriquez found that Plaintiff's lumbar spine had tenderness and decreased range of motion of 70 out of 90 degrees on trunk flexion. (AR 246.) He had no muscle spasms, and straight-leg-raising tests were negative. (Id.) Ranges of motion of the cervical spine and all other joints were normal. (Id.) Plaintiff had normal muscle tone, 5/5 strength, intact sensation, and a normal gait. (AR 246-47.) An x-ray taken that day showed only mild degenerative disease at L5-S1.¹⁰ (AR 248.) Dr. Enriquez opined that Plaintiff could lift and carry 100 pounds occasionally and 50 pounds frequently, stand and walk for six hours and sit for six hours in an eight-hour day, and frequently bend, stoop, and twist. (AR 247.)

10 In 1996, x-rays of Plaintiff's lumbosacral spine were normal. (AR 231.)

ii. Examining Physician Sharmin Jahan

In June 2011, Dr. Jahan, a "board eligible" psychiatrist, performed a complete psychiatric examination of Plaintiff at the Social Security Administration's request. (AR 283-88.) Dr. Jahan noted that Plaintiff had immigrated to the United States from Armenia 23 years earlier. (AR 284.) Plaintiff reported that two years before that, several of his family members had been killed in an earthquake in Armenia, and he had been trapped in rubble for five days before being rescued. (Id.) Since then, he reported, he had experienced depression, lack of concentration, flashbacks, numbness, bad dreams, and symptoms of disassociation. (Id.)

Plaintiff received Paxil¹¹ through his primary-care physician but denied ever having seen a psychiatrist or therapist or being in a psychiatric hospital. (AR 284-85.) He reported that he was able to eat, dress, and bathe independently and could "do some household chores, errands, shopping and cooking with his wife's help." (AR 285.) He managed his own money and took the bus for transportation. (Id.)

11 Paxil is a selective serotonin reuptake inhibitor used to treat depression and other conditions. Paroxetine, MedlinePlus, https://www.nlm.nih.gov/medlineplus/druginfo/meds/a698032.html (last updated Nov. 15, 2014).

Upon examination, Dr. Jahan found that Plaintiff was clean, appropriately dressed, and slightly disheveled. (AR 286.) His mood was anxious and depressed, his affect was blunted, and he had poor eye contact. (Id.) All of Dr. Jahan's other findings were normal: he found that Plaintiff was calm and not restless; directable, focused, and not distractable; and alert and oriented. (Id.) Plaintiff denied hallucinations and other perceptual disturbances and had logical thoughts, intact attention and immediate recall, fairly intact past memories, average general fund of knowledge, and fair insight and judgment. (AR 286-87.) He was able to express his own personal history and was interested in the interview. (AR 286.)

Dr. Jahan diagnosed moderate posttraumatic stress disorder and a global assessment of functioning ("GAF") score of 60.¹² (AR 287.) She believed that Plaintiff was able to understand, remember, and perform simple tasks but was moderately limited in his ability to understand and follow complex and detailed instructions; interact with coworkers, colleagues, and supervisors; and maintain concentration, attention, persistence, and pace. (Id.) She believed Plaintiff's ability to cope with workplace stress was "limited." (Id.) Dr. Jahan "expected that with continuation of treatment [Plaintiff] would be able to cope well and would be able to maintain his stability." (Id.) She believed his prognosis was "fair" and that he was capable of managing his own funds. (AR 288.)

12 A GAF score of 51 to 60 indicates moderate symptoms or difficulty in social, occupational, or school functioning. See Diagnostic and Statistical Manual of Mental Disorders ("DSM-IV") 34 (revised 4th ed. 2000). The Commissioner has declined to endorse GAF scores, Revised Medical Criteria for Evaluating Mental Disorders and Traumatic Brain Injury, Fed. Reg. 50764-65 (Aug. 21, 2000) (codified at 20 C.F.R. pt. 404) (GAF score "does not have a direct correlation to the severity requirements in our mental disorders listings"), and the most recent edition of the DSM "dropped" the GAF scale, citing its lack of conceptual clarity and questionable psychological measurements in practice. Diagnostic and Statistical Manual of Mental Disorders 16 (5th ed. 2012).

iii. Consulting Physicians R.E. Brooks and R. Tashjian

In July 2011, Dr. Brooks, who specialized in psychiatry, reviewed Dr. Jahan's evaluation and the CDI report and completed a psychiatric-review-technique form.¹³ (AR 289-300.) Dr. Brooks determined that Plaintiff's posttraumatic stress disorder was not severe and resulted in no restriction of activities of daily living and no difficulties in maintaining social functioning, concentration, persistence, or pace. (AR 289, 292, 297.) He opined that Dr. Jahan's "[o]ne-time" evaluation did "not give a total picture of [Plaintiff's] mental status" and that the CDI report was "given the controlling weight as it showed extensive report on [Plaintiff's] capability to function." (AR 299.)

13 Drs. Brooks's and Tashjian's electronic signatures include a medical specialty code of 37, indicating psychiatry. (AR 289); see Program Operations Manual System ("POMS") DI 24501.004, U.S. Soc. Sec. Admin. (May 5, 2015), http://policy.ssa.gov/poms.nsf/lnx/0424501004.

In September 2011, Dr. Tashjian, who also specialized in psychiatry, reviewed the record and agreed that Plaintiff's posttraumatic stress disorder was not severe. (AR 301, 305, 311.)

iv. Treating Physician Gevorkian

In a March 2012 note, Dr. Gevorkian, who specialized in psychiatry, stated that Plaintiff had been under his care since February 2012 and suffered from "major depression and PTSD for which [he] is taking psychotropic medications." (AR 312.)

In May 2012, Dr. Gevorkian completed a Mental Disorder Questionnaire, noting that he had seen Plaintiff monthly since February 1, 2012. (AR 344-49.) He stated that Plaintiff reported having low energy, decreased concentration, decreased appetite, insomnia, and feelings of hopelessness and worthlessness. (AR 344.)

Dr. Gevorkian noted that Plaintiff "always appears depressed, sad with psychomotor retardation." (AR 348.) His speech was delayed and slow, concentration "severely impaired," short- and long-term memories impaired, affect restricted, thought process linear but slowed, and insight and judgment impaired. (AR 346, 348.) He had "paranoid type delusions," passive suicidal ideations, and borderline intellectual functioning. (AR 346, 348.) As a result of his symptoms, Plaintiff isolated himself, stayed home most of the time, and needed assistance with daily chores. (AR 345.) He had difficulty communicating with family members and did not interact with neighbors or friends. (Id.) Plaintiff understood simple oral and written directions but was unable to carry them out because he was depressed. (Id.) Dr. Gevorkian believed that Plaintiff could not adapt to workplace stressors such as making decisions and interacting with others. (Id.) Dr. Gevorkian diagnosed major depressive disorder with paranoia, posttraumatic stress disorder, anxiety disorder, and a GAF score of 45 to 50.¹⁴ (AR 347.) He believed Plaintiff's prognosis was "guarded" and that he was not competent to manage his funds. (Id.)

14 A GAF score of 41 to 50 indicates "serious symptoms." DSM-IV 34.

v. Treating Physician Karapetian

In March 2012, Dr. Karapetian wrote a note stating that Plaintiff had been under his care since 2003 and that his "current diagnoses" were hypertension, lumbar spondylosis, depression, anxiety, hyperlipidemia, and gastroesophageal reflux disease. (AR 313.)

In June 2013, seven months after the ALJ issued her opinion, Dr. Karapetian wrote a letter stating that Plaintiff had been under his care since 2003 and was disabled due to hypertension, lumbar spondylosis with neuropathy, lumbago, history of back trauma, depression, anxiety, hyperlipidemia, history of hernia, lower extremity venous insufficiency, history of nephrolithiasis,¹⁵ peripheral vascular disease, aortic regurgitation, tricuspidal and mitrial valve mild stenosis, and gastroesophageal reflux disease. (AR 351.)

15 Nephrolithiasis is the medical term for kidney stones. Kidney Stones, Mayo Clinic, http://www.mayoclinic.org/diseases-conditions/kidney-stones/basics/definition/con-20024829 (last updated Feb. 26, 2015).

3. Analysis

The ALJ summarized the medical evidence and concluded that Plaintiff retained the RFC for medium work with frequent bending, stooping, and twisting. (AR 26, 30.) In doing so, she accorded "great weight" to Drs. Enriquez's, Brooks's, and Tashjian's opinions, finding that they comported with "the objective findings in the record" and Plaintiff's "statements regarding his capacity to perform daily activities." (AR 30.) The ALJ accorded "great weight" to Dr. Jahan's "clinical notes and finding" but "less weight" to her conclusion that Plaintiff had some moderate work restrictions. (AR 27-28.) The ALJ gave Dr. Gevorkian's opinion "no weight." (AR 28.) For the reasons discussed below, the ALJ did not err in assessing the medical evidence.

i. Dr. Karapetian

After the ALJ rendered her unfavorable decision, Plaintiff submitted to the Appeals Council Dr. Karapetian's June 2013 letter stating that Plaintiff was "disabled" because of 14 different medical conditions. (AR 351.) Because the Appeals Council considered the June 2013 letter and made it part of the administrative record (see AR 1-5), the Court considers it in determining whether substantial evidence supports the ALJ's decision. See Brewes, 682 F.3d at 1163. As discussed below, remand is not necessary because Dr. Karapetian's brief, unsupported statement does not undermine the ALJ's determination that Plaintiff was not disabled. (See AR 351); see Boyd v. Colvin, 524 F. App'x 334, 336 (9th Cir. 2013) (remand not warranted when new evidence did not "sufficiently undermine[]" ALJ's ruling).

As an initial matter, Dr. Karapetian's opinion simply stated that Plaintiff was "disabled" without listing any specific functional limitations or explaining how Plaintiff's impairments limited his ability to work. A physician's conclusory statement that a person is "disabled" is not binding on the ALJ or entitled to any special significance. See § 416.927(d)(1) ("A statement by a medical source that you are 'disabled' or 'unable to work' does not mean that we will determine that you are disabled."); SSR 96-5p, 1996 WL 374183, at *5 (treating-source opinions that person is disabled or unable to work "can never be entitled to controlling weight or given special significance").

Moreover, as the ALJ found, Dr. Karapetian's notes largely contained "nothing more than subjective complaints with no clinical notations other than reiterations that [Plaintiff's] blood pressure was under control."¹⁶ (AR 28); see Thomas, 278 F.3d at 957 (ALJ "need not accept the opinion of . . . a treating physician" if it is "brief, conclusory, and inadequately supported by clinical findings"); Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001) (when ALJ properly discounted claimant's credibility, he was "free to disregard" doctor's opinion that was premised on claimant's subjective complaints). Indeed, Dr. Karapetian's notes are very brief, mainly noting on check-off forms Plaintiff's complaints of depressed mood, back pain, heartburn, and, occasionally, cold symptoms or heart palpitations.¹⁷ In a few notes issued after the DRO's January 2012 decision, Dr. Karapetian also recorded Plaintiff's complaints of anxiety, and in May 2012, he recorded Plaintiff's complaints of muscle pain, muscle spasm, and decreased range of motion of the back.¹⁸ Dr. Karapetian recorded very few supporting clinical findings; he generally indicated in the "objective" section of his notes only that Plaintiff had varicose veins and spine tenderness. (See AR 258-60, 262, 264, 267, 270, 278, 281; see also AR 272 (noting spine tenderness and cold symptoms); cf. AR 275 (Mar. 2011, noting spine tenderness and decreased range of motion).)

16 The ALJ stated that the record contained only four of Dr. Karapetian's treatment notes from 2011 and four from 2012 (AR 28), but in fact, the record contains five notes from 2011 (see AR 271-81, 340) and four from 2012 (AR 336-39) as well as seven from 2010 (AR 258-70).

17 (See AR 259 (Jan. 2010, feels better but complains of depressed mood), 258 (Feb. 2010, feels better but complains of depressed mood), 260 (Mar. 2010, complains of low-back pain and depressed mood), 264 (May 2010, complains of depressed mood and low-back pain "off and on"), 262 (July 2010, complains of depressed mood, low-back pain, and "brittle fingernail"), 268 (Oct. 2010, complains of depressed mood that was improving with treatment, back pain, heartburn, and nausea), 269 (Dec. 2010, feels "well" but complains of depressed mood, heartburn, back pain), 271 (Jan. 2011, complains of depressed mood, back pain, heartburn, bloating, cough, and heart palpitation), 274 (Mar. 2011, complains of depressed mood, back pain, bloating, and heartburn), 277 (Apr. 2011, complains of back pain, heart palpitations, depression, and heartburn), 280 (June 2011, complains of back pain, depression, and heartburn), 340 (Sept. 2011, complains of back pain, depression, and heartburn).)

18 (See AR 336 (Jan. 2012, complains of back pain, anxiety, heart palpitation, heartburn, and depression), 338 (Feb. 2012, complains of back pain, anxiety, depression, and heartburn), 339 (Feb. 2012, complains of anxiety, depression, and heartburn), 337 (May 2012, complains of back pain, decreased range of motion of back, muscle spasm, muscle pain, anxiety, and depression).)

Dr. Karapetian's June 2013 letter also conflicts with his March 2012 letter and his own treatment notes. See Valentine v. Comm'r, Soc. Sec. Admin., 574 F.3d 685, 692-93 (9th Cir. 2009) (contradiction between treating physician's opinion and his treatment notes constitutes specific and legitimate reason for rejecting treating physician's opinion). Dr. Karapetian's June 2013 letter listed 14 medical conditions and stated that Plaintiff was disabled (AR 351), but his March 2012 letter listed only six medical conditions — hypertension, lumbar spondylosis, depression, anxiety, hyperlipidemia, and gastroesophageal reflux disease — and didn't set out any limitations or conclude that he was disabled (AR 313). Dr. Karapetian's treatment notes also fail to reflect some of the additional conditions listed in the June 2013 letter.¹⁹ Indeed, given that the June 2013 letter postdates the ALJ's November 2012 decision by seven months and includes diagnoses that were not reflected anywhere in the earlier notes, it likely does not show Plaintiff's condition during the relevant time period. As such, it is minimally relevant. See Quesada v. Colvin, 525 F. App'x 627, 630 (9th Cir. 2013) (finding that "district court properly concluded that the additional evidence [plaintiff] submitted to the Appeals Council would not have changed the outcome in the case because it post-dated the ALJ's decision and therefore was not relevant").

19 Dr. Karapetian's June 2013 letter stated that Plaintiff suffered from, among other things, neuropathy, history of hernia, lower extremity venous insufficiency, history of nephrolithiasis, peripheral vascular disease, aortic regurgitation, and tricuspidal and mitrial valve mild stenosis. (AR 351.) These diagnoses don't appear in any of Dr. Karapetian's treatment notes. (See AR 259 (Jan. 2010, hypertension, hyperlipidemia, lumbar spondylosis, gastroesophageal-reflux disease, and depression), 258 (Feb. 2010, same), 260 (Mar. 2010, same but adding "[f]ingemail [sic] deformity"), 264 (May 2010, hypertension, hyperlipidemia, lumbar spondylosis, and depression), 262 (July 2010, depression, fingernail deformity, hypertension, hyperlipidemia, lumbar spondylosis, gastroesophageal-reflux disease), 268 (Oct. 2010, no diagnosis listed), 270 (Dec. 2010, hypertension, "GERD," depression, lumbar spondylosis, and other illegible conditions), 272 (Jan. 2011, palpitation, depression, common cold, "GERD," lumbar spondylosis, and other illegible conditions), 275 (Mar. 2011, hypertension, depression, "GERD," lumbar spondylosis, and another illegible condition), 278 (Apr. 2011, palpitation, hypertension, depression, "GERD," lumbar spondylosis, and another illegible condition), 281 (June 2011, hypertension, depression, "GERD," lumbar spondylosis, and another illegible condition), 340 (Sept. 2011, no diagnosis listed), 336 (Jan. 2012, same), 338 (Feb. 2012, same), 339 (Feb. 2012, same), 337 (May 2012, same).)

Finally, Dr. Enriquez's opinion provides ample support for the ALJ's finding that Plaintiff could perform a limited range of medium work. Dr. Enriquez examined Plaintiff and found that he had tenderness in the lumbosacral spine area and decreased range of motion on trunk flexion. (AR 246.) All other findings were normal — for example, Plaintiff had a normal gait, intact sensation, 5/5 strength, and normal ranges of motion of all other joints. (AR 246-47.) And an x-ray taken that day showed only mild degenerative disease at L5-S1. (AR 248.) Consistent with those findings, Dr. Enriquez opined that Plaintiff could lift 100 pounds occasionally and 50 pounds frequently and stand and walk for six hours and sit for six hours in an eight-hour day. (AR 247.) The ALJ credited Dr. Enriquez's opinion but gave Plaintiff "some benefit of the doubt" and limited him to medium work. (AR 30.) Because Dr. Enriquez personally observed and examined Plaintiff and her findings were consistent with the objective evidence, her opinion constitutes substantial evidence supporting the ALJ's decision. See Tonapetyan, 242 F.3d at 1149 (finding that examining physician's "opinion alone constitutes substantial evidence, because it rests on his own independent examination of [claimant]"); Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995) (opinion of nontreating source based on independent clinical findings may itself be substantial evidence).

Plaintiff challenges the ALJ's asserted failure to credit Dr. Karapetian's June 2013 opinion (see, e.g., J. Stip. at 12-13, 19 (arguing that ALJ should not have credited CDI report over Dr. Karapetian's June 2013 opinion that Plaintiff was totally disabled), 28 (stating that ALJ erroneously "did not give any weight to the findings of Dr. Karapetian who treated the Plaintiff for over 12 years"); see also id. at 30-31), but as discussed above, that opinion was never before the ALJ. Rather, it postdated the ALJ's decision by seven months and was submitted directly to the Appeals Council. (AR 1-5.) As such, the Court has considered whether the ALJ's decision was supported by substantial evidence notwithstanding that report. Because substantial evidence still supports the ALJ's assessment of the medical evidence, remand is not warranted. See Sullivan v. Colvin, 588 F. App'x 725, 726-27 (9th Cir. 2014) (declining to remand based on new evidence submitted to Appeals Council because even though "the new evidence supported [plaintiff's] disability allegations, substantial evidence still supported the ALJ's nondisability determination").

ii. Dr. Gevorkian

Dr. Gevorkian's opinion conflicted with Dr. Jahan's clinical findings and Drs. Brooks's and Tashjian's opinions that Plaintiff's alleged psychiatric impairment was not severe. As such, the ALJ was required to provide only specific and legitimate reasons for rejecting the opinion, which she did.

As the ALJ noted (AR 28), Dr. Gevorkian first saw Plaintiff in February 2012 — less than a month after the DHO denied Plaintiff's request for continued benefits — and he saw Plaintiff only a couple more times before rendering his opinion, in May 2012.²⁰ (AR 347.) The ALJ was entitled to consider Dr. Gevorkian's brief, three-month treatment relationship with Plaintiff when weighing his opinion. See § 416.927(c)(2)(i) (stating that ALJ will consider "[l]ength of the treatment relationship and the frequency of examination"). The ALJ also noted that Dr. Gevorkian's opinion was not supported by any treatment notes (AR 28), which was another permissible reason for discounting it. See Thomas, 278 F.3d at 957 (ALJ "need not accept the opinion of . . . a treating physician" if it is "brief, conclusory, and inadequately supported by clinical findings"); § 416.927(c)(3) ("The more a medical source presents relevant evidence to support an opinion, particularly medical signs and laboratory findings, the more weight we will give that opinion.").

20 The ALJ stated that Dr. Gevorkian had been treating Plaintiff for only two months before rendering his opinion (AR 28), but it was actually just over three. (AR 347 (stating that first examination was on Feb. 1, 2012, last examination was on May 16, 2012, and frequency of visits was "monthly").) Because this was still a very brief treatment history that encompassed only a handful of visits, any error in the ALJ's statement was harmless. See Stout, 454 F.3d at 1055 (nonprejudicial or irrelevant mistakes harmless).

The ALJ also properly discounted Dr. Gevorkian's opinion because he "essentially took [Plaintiff's] words as reasons to support his claim [that Plaintiff] was disabled." (AR 28); see Tonapetyan, 242 F.3d at 1149 (when ALJ properly discounted claimant's credibility, he was "free to disregard" doctor's opinion that was premised on claimant's subjective complaints). Given that minimal objective medical evidence in the record supported Dr. Gevorkian's assessed limitations, the ALJ reasonably found that his opinion was based primarily on Plaintiff's subjective complaints. As discussed in Section C below, moreover, the ALJ provided clear and convincing reasons for finding Plaintiff not credible.

Finally, the ALJ was entitled to rely on Dr. Jahan's clinical findings and Drs. Brooks's and Tashjian's opinions instead of Dr. Gevorkian's. The ALJ found that the examining and consulting doctors' opinions "agree[d] with the objective findings in the record, as well as [Plaintiff's] statements regarding his capacity to perform daily activities." (AR 30.) Indeed, Dr. Jahan's only abnormal examination findings were that Plaintiff had an "anxious and depressed" mood, blunted affect, and poor eye contact. (AR 286-87.) Dr. Jahan found that Plaintiff was otherwise normal: he was calm, directable, focused, cooperative, and oriented, and he had spontaneous and fluent speech; intact attention, recall, and memories; logical and sequential thoughts; an average general fund of knowledge; and fair insight and judgment. (Id.) He did not have "paranoid ideation" or delusions. (AR 286.) Drs. Brooks's and Tashjian's findings that Plaintiff's alleged psychological condition was not severe were consistent with Dr. Jahan's clinical findings and the CDI report, which showed that Plaintiff was alert, oriented, focused, and well-groomed and able to answer questions and recall information, perform chores and prepare meals without assistance, shop for groceries, use public transportation, use a county debit card to buy food, and attend church twice a week. (AR 242-43.) As such, the ALJ was entitled to rely on Dr. Jahan's clinical findings and Drs. Brooks's and Tashjian's opinions. See Tonapetyan, 242 F.3d at 1149 (although "contrary opinion of a non-examining medical expert does not alone constitute a specific, legitimate reason for rejecting a treating or examining physician's opinion, it may constitute substantial evidence when it is consistent with other independent evidence in the record").

Plaintiff argues that the ALJ should have credited Dr. Gevorkian's opinion because it was supported by "clinical observations." (J. Stip. at 31-32.) But as discussed above, Dr. Gevorkian's findings — such as that Plaintiff had "delayed" and slow speech, "severely impaired" concentration, paranoid delusions, slow thought process, impaired short- and long-term memories, impaired insight and judgment, borderline intellectual functioning, and psychomotor retardation and needed help with daily chores (AR 345-46, 348) — conflicted with Dr. Jahan's clinical findings, the CDI investigators' observations, and Plaintiff's own reports of his daily activities. As such, and in light of the ALJ's other stated reasons, the ALJ did not err in crediting the other doctors' medical opinions over Dr. Gevorkian's.

Remand is not warranted on this ground.

C. The ALJ Did Not Err in Discounting Plaintiff's Credibility

Plaintiff contends that the ALJ erred in discounting his credibility. (J. Stip. at 12-13, 20-21, 25-26, 32-36.)

1. Applicable law

An ALJ's assessment of symptom severity and claimant credibility is entitled to "great weight." See Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989) (as amended); Nyman v. Heckler, 779 F.2d 528, 531 (9th Cir. 1985) (as amended Feb. 24, 1986). "[T]he ALJ is not 'required to believe every allegation of disabling pain, or else disability benefits would be available for the asking, a result plainly contrary to 42 U.S.C. § 423(d)(5)(A).'" Molina, 674 F.3d at 1112 (quoting Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)).

In evaluating a claimant's subjective symptom testimony, the ALJ engages in a two-step analysis. See Lingenfelter, 504 F.3d at 1035-36. "First, the ALJ must determine whether the claimant has presented objective medical evidence of an underlying impairment '[that] could reasonably be expected to produce the pain or other symptoms alleged.'" Id. at 1036 (quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc)). If such objective medical evidence exists, the ALJ may not reject a claimant's testimony "simply because there is no showing that the impairment can reasonably produce the degree of symptom alleged." Smolen, 80 F.3d at 1282 (emphasis in original).

If the claimant meets the first test, the ALJ may discredit the claimant's subjective symptom testimony only if he makes specific findings that support the conclusion. See Berry v. Astrue, 622 F.3d 1228, 1234 (9th Cir. 2010). Absent a finding or affirmative evidence of malingering, the ALJ must provide "clear and convincing" reasons for rejecting the claimant's testimony. Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015) (as amended); Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d 1090, 1102 (9th Cir. 2014). The ALJ may consider, among other factors, (1) ordinary techniques of credibility evaluation, such as the claimant's reputation for lying, prior inconsistent statements, and other testimony by the claimant that appears less than candid; (2) unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of treatment; (3) the claimant's daily activities; (4) the claimant's work record; and (5) testimony from physicians and third parties. Rounds v. Comm'r Soc. Sec. Admin., 807 F.3d 996, 1006 (9th Cir. 2015) (as amended); Thomas, 278 F.3d at 958-59. If the ALJ's credibility finding is supported by substantial evidence in the record, the reviewing court "may not engage in second-guessing." Thomas, 278 F.3d at 959.

2. Relevant background

In a February 4, 2011 disability report, Plaintiff wrote that he was unable to work because of back pain, right-leg pain, an eye injury, and anxiety. (AR 164.) In a function report completed that same day, he wrote, "I have back pain and I cannot stay on my feet and I cannot work." (AR 175.) His daily activities included taking medicine, "do[ing] household chores," napping for one or two hours, watching T.V. for one or two hours, showering, and eating meals. (AR 176.) He later wrote that his only household chore was to take out the trash every other day, which took about 10 minutes. (AR 177.) He did not prepare his own meals because he "d[id] not know how to cook." (Id.) He had no problems with personal care, handling money, or paying bills. (AR 176, 178.) He went outside twice a day, traveled by walking or using public transportation, and shopped in stores for groceries two or three times a week for 30 minutes at a time. (AR 178.) Plaintiff did not drive because he did not have a car. (Id.) He did not spend time with others. (AR 179.) When asked to list the places he went on a regular basis, such as "church," he wrote that he did not leave the house unless he needed to go to the store. (Id.)

Plaintiff wrote that because of his back pain, he could not lift "heavy objects" and could walk for only five to seven minutes before needing to rest for five minutes. (AR 180.) He could not follow written instructions but could pay attention for one or two hours and had "no trouble" following spoken instructions. (Id.) He had no problems with authority figures or handling changes in his routine. (AR 181.) Plaintiff reported that he did not "get stressed out," was "a very calm person," and did not have any unusual behavior or fears. (Id.)

In June 2011, Plaintiff reported to Dr. Jahan that he could eat, dress, and bathe independently and could "do some household chores, errands, shopping and cooking with his wife's help." (AR 285.) He managed his own money and took the bus for transportation. (Id.)

At the November 27, 2012 hearing, Plaintiff testified that he could not work because his back was "very weak" and he couldn't lift more than five pounds. (AR 50.) He testified that he was "very nervous," cried, and got "angry" and "mad." (AR 51.) Plaintiff "forg[o]t stuff" and had a "memory problem"; his wife would "write[] down stuff" for him to buy at the store. (AR 54-55.) He said that his "body gets weak" and "spasms." (AR 55.) Every day, he took medication and would "lay down to relax" for three or four hours. (Id.)

When the ALJ asked Plaintiff about the CDI investigators' observations of him walking and "jogging across the street," Plaintiff testified that he went to the store for food because he "ha[d] to eat," the store was "very close to the house," and he "ha[d] pains when [he] walk[ed]" and had to stop and rest. (AR 52.)

3. Analysis

The ALJ found that Plaintiff "established a foundation for his basic symptoms" but that "the cumulative medical and lay evidence shows that he can engage in sustained work activity at the level assessed" in his RFC. (AR 26; see also AR 29 (finding Plaintiff "not credible").) The ALJ provided several clear and convincing reasons for finding Plaintiff not credible.

The ALJ permissibly found that Plaintiff's "conflicting, contradicting statements" "adversely affect[ed] his credibility." (AR 26; see also AR 29 (discussing inconsistencies).) For example, in the February 2011 function report, Plaintiff wrote that he did not make his own meals, his only household chore was to take out the trash every other day (AR 177), he did "not leave the house unless [he] need[ed] to go to the store" (AR 179), and he couldn't take "long walks" (AR 180). But just one month earlier, in January 2011, Plaintiff had told CDI investigators that he was able to prepare meals and perform household chores, "including cleaning," without assistance and that he "walk[ed] approximately six city blocks with his wife, two times a week to attend church." (AR 242-43.) Similarly, in February 2011, Plaintiff wrote that he was "a very calm person" and did "not get stressed out" (AR 181), but in November 2012, he testified that he was "very nervous," got "angry" and "mad," cried, and couldn't "control it" (AR 51, 54). Plaintiff did not list any memory problems in the February 2011 function report (see AR 180 (leaving blank boxes for indicating problems with "memory," "completing tasks," "concentration," "understanding," and "following instructions"), 177 (stating he didn't need reminders to complete chores, take medicine, or take care of personal needs)), but at the hearing he testified that he couldn't work in part because of a "memory problem" (AR 54-55). Nothing else in the record indicates that Plaintiff's symptoms or impairments worsened between February 2011 and November 2012. Plaintiff's contradictory accounts of his symptoms were a clear and convincing reason for discounting his credibility. See Thomas, 278 F.3d at 958-59.

The ALJ found that Plaintiff's "credibility was gravely damaged by his own behavior and statements during an inquiry by the [CDI unit]." (AR 28.) Indeed, in his function report, Plaintiff claimed to be totally disabled because of back pain (AR 175), stating that he couldn't walk for more than five to seven minutes before he had to rest for five minutes (AR 180). But CDI investigators observed that he had a normal gait and could stand and walk without difficulty. (AR 243.) Moreover, during one visit, they observed him twice climb and descend two flights of stairs without using handrails or showing any signs of pain, and during another visit, they observed him walking at a moderate pace, jogging across the street, and rapidly walking up two flights of stairs, all with no sign of physical distress. (Id.) Although Plaintiff claimed to suffer from debilitating psychological problems, the investigators observed that he was alert, oriented, focused, and able to understand and answer questions and recall information. (Id.) The ALJ did not err in relying on the CDI report to discount Plaintiff's credibility. See Elmore, 617 F. App'x at 757 (ALJ may rely on evidence related to CDI investigations); Darmaryan, 2016 WL 1698252, at *8 ("The courts have recognized that an ALJ may consider the findings of a fraud investigation performed by the CDI when assessing a claimant's credibility.").

The ALJ also found that the "record is replete with a myriad of complaints supported by little objective evidence." (AR 26.) Plaintiff claimed to be disabled by his back condition, but as the ALJ noted (AR 26-27), Dr. Enriquez examined Plaintiff and found only that he had tenderness in the spine area and some decreased range of motion. (AR 246-47.) All of her other findings were normal — for example, Plaintiff had a normal gait, intact sensation, 5/5 strength, and normal ranges of motion of all other joints. (Id.) And lumbar-spine x-rays showed only mild degenerative disease at one level. (AR 248.) Plaintiff also claimed to suffer from debilitating psychological impairments, but as the ALJ found (AR 27-28), Dr. Jahan's clinical findings were mostly normal: Plaintiff was calm, directable, focused, cooperative, and oriented, and he had spontaneous and fluent speech; intact attention, recall, and memories; logical and sequential thoughts; an average general fund of knowledge; and fair insight and judgment (AR 283, 286-87). The ALJ was entitled to consider the lack of objective medical evidence in assessing Plaintiff's subjective complaints and his credibility. See Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005) ("Although lack of medical evidence cannot form the sole basis for discounting pain testimony, it is a factor that the ALJ can consider in his credibility analysis."); Carmickle, 533 F.3d at 1161 ("Contradiction with the medical record is a sufficient basis for rejecting the claimant's subjective testimony."); Lingenfelter, 504 F.3d at 1040 (in determining credibility, ALJ may consider "whether the alleged symptoms are consistent with the medical evidence").

The ALJ also noted that although Plaintiff received Paxil from his primary-care physician (AR 27), he "never sought mental health treatment in all the 23 years he had allegedly been suffering from major mental issues" but then "conveniently sought mental health treatment for the first time a month after the January 2012 reconsideration denying his request for continuing disability benefits." (AR 28; see AR 285 (Dr. Jahan noting in June 2011 that Plaintiff denied having ever seen psychiatrist or receiving psychotherapy and did not see therapist).) Indeed, the record shows that before February 2012, Plaintiff's only treatment for his allegedly debilitating psychiatric problems was an antidepressant prescribed by his primary-care physician. (See, e.g., AR 258, 260, 262-66 (Dr. Karapetian's notations that Plaintiff's medications included Zoloft or Paxil).)²¹ But almost immediately after the DRO issued his January 12, 2012 decision finding him no longer disabled (AR 80-89), Plaintiff sought treatment from a psychiatrist, who prescribed three additional psychiatric medications (AR 345 (Dr. Gevorkian noting that Plaintiff's current medications included Seroquel XR, Cymbalta, and Atarax).)²² The ALJ did not err in discounting Plaintiff's credibility based on his unexplained failure to seek specialized mental-health treatment for 23 years. See Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) (ALJ may discount claimant's testimony in light of "unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of treatment"); SSR 96-7p, 1996 WL 374186, at *7 (claimant's statements "may be less credible if the level or frequency of treatment is inconsistent with the level of complaints"); Molina, 674 F.3d at 1114 (ALJ permissibly discounted plaintiff's credibility in part because she was advised to seek counseling but "failed to do so until after she applied for disability benefits").²³

21 Zoloft is a selective serotonin reuptake inhibitor used to treat depression and other conditions. Sertraline, MedlinePlus, https://www.nlm.nih.gov/medlineplus/druginfo/meds/a697048.html (last updated Nov. 15, 2014).

22 Seroquel XR is an antipsychotic used to treat schizophrenia. Quetiapine, MedlinePlus, https://www.nlm.nih.gov/medlineplus/druginfo/meds/a698019.html (last updated Apr. 15, 2014). Cymbalta is a selective serotonin and norepinephrine reuptake inhibitor used to treat depression and generalized anxiety disorder. Duloxetine, MedlinePlus, https://www.nlm.nih.gov/medlineplus/druginfo/meds/a604030.html (last updated Nov. 15, 2014). Atarax is an antihistamine used to treat conditions including anxiety. Hydroxyzine, MedlinePlus, https://wwwqa.nlm.nih.gov/medlineplus/qa1/druginfo/meds/a682866.html (last updated Sept. 1, 2010).

23 The Ninth Circuit has held that "it is a questionable practice to chastise one with a mental impairment for the exercise of poor judgment in seeking rehabilitation," Nguyen v. Chater, 100 F.3d 1462, 1465 (9th Cir. 1996) (citation omitted); Regennitter v. Comm'r of Soc. Sec. Admin., 166 F.3d 1294, 1299-300 (9th Cir. 1999), but here nothing indicates that Plaintiff's failure to seek treatment from a psychiatrist or therapist "was attributable to [his] mental impairment rather than [his] own personal preference," Molina, 674 F.3d at 1114.

Plaintiff claims that the ALJ "erroneously concluded" that he "was not disabled because he could do minor household chores such as cooking, cleaning, and grocery shopping." (J. Stip. at 21.) But as discussed above, the ALJ validly discounted Plaintiff's credibility because his descriptions of his daily activities were inconsistent with each other, among other clear and convincing reasons. Plaintiff also argues that his "difficulties" in "understanding the questions presented to him at the hearing" support his account of his psychiatric symptoms. (J. Stip. at 33, 35.) But the ALJ, who observed Plaintiff during the hearing, found that Plaintiff simply "feigned confusion" and gave "vague and unresponsive answers." (AR 29.) Those findings also supported her credibility determination. See Tonapetyan, 242 F.3d at 1148 (noting that ALJ may rely on his observations of plaintiff at hearing as part of overall credibility determination). In any event, a review of the hearing transcript shows that Plaintiff gave rational answers to almost all the questions and tended to hesitate primarily when the ALJ posed difficult questions about the CDI investigators' observations of him walking, jogging, and climbing stairs without difficulty. (See AR 50-56.)

Because substantial evidence in the record supports the ALJ's credibility determination, the reviewing court "may not engage in second-guessing." Thomas, 278 F.3d at 959. Remand is not warranted on this ground.

D. Any Error in the ALJ's Reliance on the VE's Testimony Was Harmless

Plaintiff contends that the VE's testimony did "not provide substantial evidence that [he] has the [RFC] to perform other jobs in the national economy" because the VE "was not specifically asked" how many of the identified jobs "would be available for a person such as Plaintiff with a limited fluency in English, a limited educational background, and physical and mental impairments which make it difficult for [him] to follow instructions and cope with workplace stress." (J. Stip. at 37.) Plaintiff further argues that this case is analogous to Pinto v. Massanari, 249 F.3d 840 (9th Cir. 2001), because neither the ALJ nor the VE addressed the impact of Plaintiff's alleged illiteracy on his ability to perform the identified jobs. (J. Stip. at 41.) For the reasons discussed below, remand is not warranted on this ground.

1. Relevant background

Plaintiff testified with the assistance of an interpreter at the November 2012 hearing. (AR 44.) During the hearing, the ALJ questioned Plaintiff as follows:

Q . . . [H]ow far did you get in school?

A 8th grade.²⁴

24 As previously noted, some evidence in the record shows that Plaintiff completed the 12th grade. (See AR 234.)

Q Was that in the states, or in Armenia?

A Armenia.

Q And do you understand some English?

A Yes.

Q Okay, but a little bit.

A Yeah. (AR 56.)

The ALJ later presented the VE with a hypothetical "younger individual, with an 8th grade education, but no past relevant work" who was capable of medium work with only frequent bending, twisting, and stooping and who was "illiterate in English." (AR 57.) The VE testified that such an individual could work as a hand packager, DOT 920.587-018, 1991 WL 687916; cleaner II, DOT 919.687-014,²⁵ 1991 WL 687897; or industrial cleaner, DOT 381.687-018, 1991 WL 673258. (AR 57-58.) The DOT provides that the hand-packager and cleaner II positions require Level 1 language skills and the industrial-cleaner position requires Level 2 language skills. See DOT 920.587-018, 1991 WL 687916; DOT 919.687-014, 1991 WL 687897; DOT 381.687-018, 1991 WL 673258. After responding to three additional hypotheticals, the VE stated that his testimony was consistent with the DOT. (AR 59.)

25 Both the VE and the ALJ cited DOT 919.687-010 in reference to the cleaner II job (AR 31, 57), but the correct code is DOT 919.687-014.

In her November 2012 decision, the ALJ formulated an RFC for a limited range of medium work without including any limitations based on illiteracy. (AR 26.) Later in the opinion, she determined that Plaintiff had a "limited education" and was "able to communicate in English," citing 20 C.F.R. § 416.964. (AR 30.) She summarized the VE's testimony, found that it was "consistent with the information contained in the [DOT]," and relied on it to find that Plaintiff could perform work in the national economy. (AR 31.) She therefore determined that Plaintiff was no longer disabled. (AR 31-32.)

2. Applicable law

The DOT is the best source of information about how a job is generally performed. See Carmickle, 533 F.3d at 1166; see also Johnson v. Shalala, 60 F.3d 1428, 1435 (9th Cir. 1995); § 416.966(d)(1). In order to rely on a VE's testimony regarding the requirements of a particular job, an ALJ must inquire whether the testimony conflicts with the DOT. Massachi v. Astrue, 486 F.3d 1149, 1152-53 (9th Cir. 2007) (citing SSR 00-4p, 2000 WL 1898704, at *4 (Dec. 4, 2000)). When such a conflict exists, the ALJ may accept VE testimony that contradicts the DOT only if the record contains "persuasive evidence to support the deviation." Pinto, 249 F.3d at 846 (citing Johnson, 60 F.3d at 1435); see also Tommasetti, 533 F.3d at 1042 (finding error when "ALJ did not identify what aspect of the VE's experience warranted deviation from the DOT").

According to the DOT, a person with Level 1 language proficiency can "[r]ecognize [the] meaning of 2,500 (two- or three-syllable) words"; read "95-120 words per minute"; "[c]ompare similarities and differences between words and between series of numbers"; "[p]rint simple sentences containing subject, verb, and object, and series of numbers, names, and addresses"; and "[s]peak simple sentences, using normal word order, and present and past tenses." See DOT, App. C, 1991 WL 688702. A person with Level 2 language proficiency has a "[p]assive vocabulary of 5,000-6,000 words" and can read "190-215 words per minute"; "[r]ead adventure stories and comic books, looking up unfamiliar words in dictionary for meaning, spelling, and pronunciation"; "[r]ead instructions for assembling model cars and airplanes"; "[w]rite compound and complex sentences, using cursive style, proper end punctuation, and employing adjectives and adverbs"; and "[s]peak clearly and distinctly with appropriate pauses and emphasis, correct punctuation, variations in word order, using present, perfect, and future tenses." Id.

3. Analysis

As an initial matter, to the extent Plaintiff contends that the ALJ erred by failing to include in her hypothetical to the VE limitations on following instructions and dealing with workplace stress (see J. Stip. at 37), that argument fails. As discussed above, the ALJ properly weighed the medical evidence and Plaintiff's credibility in determining that he retained the RFC for medium work with only frequent bending, stooping, and twisting. The ALJ was not required to include in the RFC or the VE hypothetical limitations that were permissibly discounted. See Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005) ("Preparing a function-by-function analysis for medical conditions or impairments that the ALJ found neither credible nor supported by the record is unnecessary."); Batson, 359 F.3d at 1197 (ALJ not required to incorporate into RFC those findings from treating-physician opinions that were "permissibly discounted"); see also Yelovich v. Colvin, 532 F. App'x 700, 702 (9th Cir. 2013) ("Because the RFC was not defective, the hypothetical question posed to the VE was proper.").

To the extent Plaintiff challenges the ALJ's reliance on the VE's testimony that an illiterate person could perform jobs requiring levels 1 and 2 language skills, remand is not warranted. As an initial matter, a claimant is not per se disabled simply because he is illiterate. See Pinto, 249 F.3d at 847. Indeed, Level 1 is the lowest language level used in the DOT; thus, "[a] decision holding that illiterate individuals could not perform Level 1 jobs would mean that illiteracy was a per se disability under the DOT." Meza v. Astrue, No. C-09-1402-EDL, 2011 WL 11499, at *21 (N.D. Cal. Jan. 4, 2011) (citing Lawson v. Apfel, 46 F. Supp. 2d 941, 945, 947 (W.D. Mo. 1998) (noting that "such a holding is illogical and would directly contradict the Social Security regulations")); see also SSR 00-4p, 2000 WL 1898704, at *3 (Dec. 4, 2000) ("The DOT lists maximum requirements of occupations as generally performed, not the range of requirements of a particular job as it is performed in specific settings.").

Nevertheless, the VE's testimony that an illiterate individual could perform the jobs of hand packager, cleaner II, and industrial cleaner arguably conflicted with the DOT because those jobs involve Level 1 and Level 2 language skills, which require at least the ability to recognize the meaning of 2500 words, read 95 words a minute, and write very simple sentences. (AR 57-58); see DOT 920.587-018, 1991 WL 687916; DOT 919.687-014, 1991 WL 687865; DOT 381.687-018, 1991 WL 673258; Pinto, 249 F.3d at 846-47 (finding conflict between DOT and VE testimony that illiterate claimant could perform jobs with Level 1 language skills); but see Meza, 2011 WL 11499, at *21 (finding no conflict between DOT and VE testimony that illiterate non-English-speaking person could perform jobs requiring Level 1 language skills). The ALJ, moreover, failed to explain or elicit VE testimony explaining how an illiterate person could perform jobs with such requirements.

But any error in failing to resolve that apparent conflict was harmless because the ALJ in fact never found that Plaintiff was illiterate. To the contrary, she concluded that he had a "limited education" and was "able to communicate in English," citing § 416.964. (AR 30.) That regulation defines "illiteracy" as "the inability to read or write" and states that "[g]enerally, an illiterate person has had little or no formal schooling." § 416.964(b)(1). It defines "marginal education" as "ability in reasoning, arithmetic, and language skills which are needed to do simple, unskilled types of jobs," § 416.964(b)(3), and "limited education" as "ability in reasoning, arithmetic, and language skills, but not enough to allow a person with these educational qualifications to do most of the more complex job duties needed in semi-skilled or skilled jobs," § 416.964(b)(3).²⁶ The ALJ's explicit finding that Plaintiff had a "limited education" shows that she did not believe him to be illiterate. (AR 30.) Section 416.964 also states that the "[i]nability to communicate in English" may be considered an "educational factor" because "it may be difficult for someone who doesn't speak and understand English to do a job, regardless of the amount of education the person may have in another language." § 416.964(b)(5). The ALJ, however, specifically found that Plaintiff was able to communicate in English. (AR 30.)

26 Section 416.964 defines one other category of educational background, "high school education and above," which

means abilities in reasoning, arithmetic, and language skills acquired through formal schooling at a 12th grade level or above. We generally consider that someone with these educational abilities can do semi-skilled through skilled work.

§ 416.964(b)(4).

The ALJ also pointed to evidence that supported her finding regarding Plaintiff's language skills. She noted that "[a]n Armenian interpreter was present at the hearing" but that Plaintiff "frequently answered questions before the interpreter completed the translation of the undersigned's questions, and would say 'yes' to confirm the interpreter's statements." (AR 29.) She also noted that Plaintiff "spoke in English several times during the hearing." (Id.) Indeed, Plaintiff admitted at the hearing that he was able to understand "some English." (AR 56.) The ALJ also noted that nothing showed that "the CDI investigative interview was conducted with the aid of an Armenian interpreter." (AR 29.) And it appears that at least one psychiatric interview might have been conducted without the assistance of an interpreter. (See AR 283 (Dr. Jahan's psychiatric report not indicating that Plaintiff was assisted by interpreter and stating that Plaintiff was "[t]he source of information for the evaluation").)

Although Plaintiff claims to be unable to read English or write anything other than his name in English (AR 163), the ALJ found that he generally was not credible; moreover, Plaintiff apparently was able to complete lengthy written disability and function reports on his own and in English (see AR 163-74 (disability report completed in English and stating that person completing report was "[t]he person who is applying for disability"); 175-82 (function report completed in English and in first person and listing Plaintiff as "person completing this form")). Thus, although some evidence shows that Plaintiff had difficulty communicating in English (see, e.g., AR 68 (DRO's checking of "no" under "ability to read/write/speak/understand English" and noting "Interpreter"), 205 (field office worker's notation that Plaintiff spoke "limited English"), 244 (Dr. Enriquez's notation that Plaintiff was assisted by interpreter)), the evidence reasonably supports the ALJ's finding regarding Plaintiff's language skills, and the Court therefore must uphold it. See Reddick, 157 F.3d at 720-21 ("If the evidence can reasonably support either affirming or reversing," reviewing court "may not substitute its judgment" for Commissioner's).

The descriptions of the three identified jobs further support the ALJ's conclusion that Plaintiff could perform them. A person performing the hand-packager job

[p]ackages materials and products manually, performing any combination of following duties: Cleans packaging containers. Lines and pads crates and assembles cartons. Obtains and sorts product. Wraps protective material around product. Starts, stops, and regulates speed of conveyor. Inserts or pours product into containers or fills containers from spout or chute. Weighs containers and adjusts quantity. Nails, glues, or closes and seals containers. Labels containers, container tags, or products. Sorts bundles or filled containers. Packs special arrangements or selections of product. Inspects materials, products, and containers at each step of packaging process. Records information, such as weight,

time, and date packaged.

920.587-018, 1991 WL 687916. A person performing the cleaner II job

[c]leans interiors and exteriors of transportation vehicles, such as airplanes, automobiles, buses, railroad cars, and streetcars: Cleans interior of vehicle, using broom, cloth, mop, vacuum cleaner, and whisk broom. Cleans windows with water, cleansing compounds, and cloth or chamois. Replenishes sanitary supplies in vehicle compartments. Removes dust, grease, and oil from exterior surfaces of vehicles, using steam-cleaning equipment, or by spraying or washing vehicles, using spraying equipment, brush or sponge.

919.687-014, 1991 WL 687897. And someone performing the industrial-cleaner job

[k]eeps working areas in production departments of industrial establishment in clean and orderly condition, performing any combination of following duties: Transports raw materials and semifinished products or supplies between departments or buildings to supply machine tenders or operators with materials for processing, using handtruck. Arranges boxes, material, and handtrucks or other industrial equipment in neat and orderly manner. Cleans lint, dust, oil, and grease from machines, overhead pipes, and conveyors, using brushes, airhoses, or steam cleaner. Cleans screens and filters. Scrubs processing tanks and vats. Cleans floors, using water hose, and applies floor drier. Picks up reusable

scrap for salvage and stores in containers.

381.687-018, 1991 WL 673258. Thus, it appears that the three jobs require little to no reading and writing.

Plaintiff's reliance on Pinto is misplaced. There, the ALJ specifically found that the plaintiff was "illiterate in English," Pinto, 249 F.3d at 843 n.1, and the ALJ's hypothetical to the VE was accordingly based on an individual who was "neither litera[te] in [E]nglish nor able to communicate in [E]nglish." Id. at 843 (alterations in original). The Ninth Circuit, moreover, found that there was "no indication that [Plaintiff knew] 2,500 words in English, the requirement to reach language level '1' in the [DOT] classifications." Pinto, 249 F.3d at 843 n.1. Here, by contrast, the ALJ did not find that Plaintiff was illiterate; rather, she found that he had a "limited education" and was able to communicate in English (AR 30), and those findings were supported by substantial evidence. As such, Pinto does not apply.

Because the ALJ never found that Plaintiff was illiterate, her failure to resolve the conflict in the VE's testimony that an illiterate person could perform the identified jobs was harmless.²⁷ See Stout, 454 F.3d at 1055 (nonprejudicial or irrelevant mistakes harmless); see also Rivera v. Colvin, No. CV 14-09217-KS, 2016 WL 94231, at *6-8 (C.D. Cal. Jan. 7, 2016) (finding no conflict between DOT and VE's testimony that person with "somewhat limited ability to communicate in English" could perform jobs requiring Level 1 language proficiency). Remand is not warranted on this ground.

27 Even if the ALJ erred in concluding that Plaintiff could perform the industrial-cleaner job, which requires Level 2 language skills, it was harmless because the other two jobs required only Level 1 skills and existed in sufficient numbers in the economy. (See AR 57-58 (VE testifying that 338,000 national and 6000 regional hand-packager jobs existed and 144,000 national and 2600 regional cleaner II jobs existed)); Gutierrez v. Comm'r of Soc. Sec., 740 F.3d 519, 529 (9th Cir. 2014) (finding 25,000 national jobs significant); Yelovich, 532 F. App'x at 702 (finding 900 regional jobs significant); Thomas, 278 F.3d at 960 (finding 1300 jobs in state significant); Meanel v. Apfel, 172 F.3d 1111, 1115 (9th Cir. 1999) (finding between 1000 and 1500 jobs in local area significant).

VI. CONCLUSION

Consistent with the foregoing, and under sentence four of 42 U.S.C. § 405(g),²⁸ IT IS ORDERED that judgment be entered AFFIRMING the decision of the Commissioner, DENYING Plaintiff's request for remand, and DISMISSING this action with prejudice. IT IS FURTHER ORDERED that the Clerk serve copies of this Order and the Judgment on counsel for both parties. DATED: May 23, 2016

28 That sentence provides: "The [district] court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing." --------

/s/_________

JEAN ROSENBLUTH

U.S. Magistrate Judge